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ERIE INDEPENDENCE HOUSE v. COMMONWEALTH PENNSYLVANIA (06/05/89)

decided: June 5, 1989.

ERIE INDEPENDENCE HOUSE, INC., PETITIONER,
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT (TWO CASES)



PETITION FOR REVIEW (UNEMPLOYMENT COMPENSATION)

COUNSEL

S.E. Riley, Jr., Stephen R. Thelin, MacDonald, Illig, Jones & Britton, Erie, for petitioner.

No appearance for respondent.

William Taggart, Erie, for Marilyn Fulkrod.

Lisa M. Sauder, Harrisburg, for Com. of Pennsylvania Dept. of Labor and Industry Office of Employment Security.

Barry and McGinley, JJ., and Narick, Senior Judge.

Author: Narick

[ 126 Pa. Commw. Page 359]

Erie Independence House, Inc. (EIH) appeals from an order of the Unemployment Compensation Board of Review (Board) which determined that Jean M. Wells (Claimant) was an employee of EIH, but that she was ineligible for unemployment compensation benefits,*fn1 because she was discharged for willful misconduct.*fn2

The facts are as follows. EIH is a non-profit social service agency that provides services to severely physically disabled individuals through the use of personal care attendants (PCAs). PCAs are trained and certified by EIH. EIH is one of approximately ten agencies which contracts with the Department of Public Welfare (DPW) to provide this service. DPW sets the rate at which PCAs are paid. DPW issues checks to EIH which, in turn, reimburses the disabled individual who then pays the PCA.

[ 126 Pa. Commw. Page 360]

A disabled individual who wishes to participate in the program is screened by EIH to assess the number of hours and the type of care required. Acceptance of the disabled party into the program is contingent upon the availability of DPW funds.

EIH accepted Marilyn Fulkrod, as a qualified disabled person, into the program, and established the number of hours Mrs. Fulkrod needed care, solely at her residence. Mrs. Fulkrod, with the assistance of her son, placed an advertisement in a local newspaper for a PCA. After conducting several interviews, Mrs. Fulkrod chose as her PCA, Claimant, who was certified by EIH. Mrs. Fulkrod, who desired assistance in addition to the hours EIH approved for DPW reimbursement, negotiated with Claimant for full-time care, all to take place at her residence. For these additional hours, Claimant would receive room and board. Claimant and Mrs. Fulkrod entered into a subcontract, wherein Claimant agreed to pay all her applicable payroll taxes. Sometime after Claimant commenced work, she began refusing to perform Mrs. Fulkrod's direct orders and declined to carry out essential personal care services. Mrs. Fulkrod terminated Claimant because of Claimant's substandard performance. Claimant filed for unemployment compensation, which the Board eventually refused, finding Claimant was separated from her employment from EIH for reasons which constitute willful misconduct.

Although Claimant's actions would be unacceptable to any employer and normally unemployment benefits would not be granted in such circumstances, EIH argues that Claimant was not its employee. EIH argues that Claimant was an independent contractor and, therefore, we need not ...


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