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Marietta B. Minelli v. Unemployment Compensation Board of Review

February 9, 2012

MARIETTA B. MINELLI, PETITIONER
v.
UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



The opinion of the court was delivered by: Renee Cohn Jubelirer, Judge

Submitted: December 14, 2011

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge*fn1

HONORABLE BERNARD L. McGINLEY, Judge HONORABLE DAN PELLEGRINI, Judge HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge

OPINION BY JUDGE COHN JUBELIRER

Marietta B. Minelli (Claimant), pro se, petitions for review of an Order of the Unemployment Compensation Board of Review (Board) affirming the Decision and Order of the Unemployment Compensation Referee (Referee) denying Claimant unemployment compensation (UC) benefits pursuant to Section 402(h) of the Unemployment Compensation Law (Law).*fn2 We reverse.

Claimant was last employed by DK Harris Consulting (DK Harris) as a consultant pursuant to an independent contractor agreement. (Referee‟s Decision/Order, Findings of Fact (FOF) ¶ 1, 9.) Claimant worked a total of 22 hours for DK Harris beginning August 12, 2010 and ending August 14, 2010. (FOF at ¶ 1-2.) Claimant applied for UC benefits for the compensable week ending August 21, 2010. (Notice of Determination at 1, R. Item 4.) The Altoona UC Service Center (Service Center) determined that Claimant was not ineligible for benefits pursuant to Section 402(h) of the Law because Claimant was not free from direction or control in the performance of her consulting job. (Notice of Determination at 1, R. Item 4.)

DK Harris timely appealed and the Referee held a hearing at which both Claimant and Denise Harris, DK Harris‟s principal, testified. The Referee found that:

(1) "Claimant was part of a team reviewing clinical records of hospice patients" for one of DK Harris‟s clients, (FOF ¶ 3); (2) "Claimant retrieved data from files that the client chose randomly," (FOF ¶ 4); (3) "Claimant observed interviews with patients," (FOF ¶ 5); (4) "Claimant‟s evaluation and analysis [were] entered into [] DK Harris‟s report to the client," (FOF ¶ 6); (5) "Claimant used her own equipment (computer) to compile her report," (FOF ¶ 7); (6) "[DK Harris] did not supervise [C]laimant‟s performance of her duties," (FOF ¶ 8); (7) "Claimant signed an independent contractor agreement," (FOF ¶ 9); (8) "Claimant submitted an invoice via email for her services," (FOF ¶ 10); and (9) Claimant "is free to perform services for other parties," (FOF ¶ 11). Based on these findings, the Referee concluded that "[C]laimant was free from direction and control and was engaged in an independent profession." (Referee‟s Decision/Order at 2.) Accordingly, the Referee reversed the Service Center‟s determination and denied Claimant benefits beginning with the week ending August 21, 2010. (Referee‟s Decision/Order at 2.)

Claimant timely appealed to the Board. Upon review, the Board adopted the Referee‟s findings of fact and conclusions of law. (Board Decision/Order.) The Board pointed out that Claimant admitted that she worked as an independent contractor.*fn3

(Board Decision/Order.) Accordingly, the Board affirmed the Referee‟s Decision and Order. Claimant now petitions this Court for review.*fn4

Before this Court, Claimant argues that her activities do not meet the two-pronged test for determining whether the services performed are "employment" as required by the Law. Claimant contends that her three-day consulting arrangement did not make her a self-employed individual, such that she should no longer be eligible for benefits, because such an arrangement does not meet any reasonable definition of self-employment. Claimant argues further that she has never been customarily engaged in an independently established trade or business.

Pursuant to Section 402(h), a claimant is ineligible for unemployment benefits in any week "[i]n which [she] is engaged in self-employment." 43 P.S. § 802(h). Section 402(h) does not define the term "self-employment"; however, Section 4(l)(2)(B) of the Law defines "employment", in pertinent part, as follows:

Services performed by an individual for wages shall be deemed to be employment subject to this act, unless and until it is shown to the satisfaction of the department that--(a) such individual has been and will continue to be free from control or direction over the performance of such services both under [her] contract of service and in fact; and (b) as to such services such individual is customarily engaged in an independently established trade, occupation, profession or business.

43 P.S. ยง 753(l)(2)(B). The purpose of Section 4(l)(2)(B) "is to exclude independent contractors from coverage." Beacon Flag Car Co., Inc. (Doris Weyant) v. Unemployment Compensation Board of Review, 910 A.2d 103, 107 (Pa. Cmwlth. 2006). "This provision presumes that an individual is an employee." Id. However, "this presumption may be overcome if the putative employer sustains its burden of showing that the claimant was free from control and direction in the performance of [her] service and that, as to such service, was customarily engaged in an independent trade or business." Id. "Unless ...


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