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DAVIS COOKIE COMPANY v. COMMONWEALTH PENNSYLVANIA (04/29/88)

decided: April 29, 1988.

DAVIS COOKIE COMPANY, INC., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeal from the Order of the Unemployment Compensation Board of Review, In Re: Claim of John H. Conley, No. B-236910-A.

COUNSEL

Avrum Levicoff, Egler, Anstandig & Garrett, for petitioner.

Peter C. Layman, Deputy Chief Counsel, with him, Clifford F. Blaze, Deputy Chief Counsel, for respondent.

President Judge Crumlish, Jr., and Judge Colins, and Senior Judge Blatt, sitting as a panel of three. Opinion by Senior Judge Blatt.

Author: Blatt

[ 115 Pa. Commw. Page 504]

The Davis Cookie Company, Inc. (Davis) petitions for review of a decision and order of the Unemployment Compensation Board of Review (Board) granting benefits to John H. Conley (claimant).

[ 115 Pa. Commw. Page 505]

In a prior unreported opinion, John H. Conley v. Unemployment Compensation Board of Review, (No. 220 C.D. 1985, filed June 5, 1987), we determined as a matter of law that the claimant, who worked as a salesman, was an employee for Davis. This determination was made because the referee specifically found that the claimant had a definite territory, was required to submit reports and attend meetings, was precluded from engaging in any other business, and was under the control and supervision of Davis. Id. The matter, however, was remanded to the Board for further findings. Specifically, we asked for factual findings as to whether or not the petitioner was given credit on his account for his deliveries to large stores, and whether or not such credit would constitute covered wages. We further directed that, "[i]f the Board should determine that the petitioner was given credit on his account for such deliveries and that it did constitute covered wages, the Board must then determine whether or not such coverage would convert all remuneration to covered wages." In footnote seven to our prior opinion we noted that "[t]he total remuneration alleged by the petitioner includes profits from the sales of Davis Cookies to small stores, credit on his account for deliveries to large stores, and a Christmas bonus given by Davis."

In response to our instructions on remand, the Board returned the following pertinent findings of fact:

1. The claimant was last employed by Davis Cookie Company, Inc., Rimersburg, Pennsylvania, for approximately thirty years, as a salesman on a percentage basis and his last day of work was August 17, 1984.

2. Under the terms of that arrangement, claimant purchased products from Davis and resold the product to retail outlets at a price designated and controlled by Davis.

[ 115 Pa. Commw. Page 5063]

. Claimant was paid the difference between the price he paid Davis for the product and the price he received from the retail outlets less his expenses, and, was given a credit on his account for goods ...


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