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Sydnor v. Unemployment Comp. Bd. of Review

Commonwealth Court of Pennsylvania

April 10, 2015

Frederick J. Sydnor, Petitioner
v.
Unemployment Compensation Board of Review, Respondent

Submitted March 20, 2015

Appealed from No. B-569421. State Agency: Unemployment Compensation Board of Review.

Frederick J. Sydnor, Pro se.

Shawn Westhafer, Assistant Counsel, Harrisburg, for respondent.

BEFORE: HONORABLE DAN PELLEGRINI, President Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge.

OPINION

DAN PELLEGRINI, JUDGE

Frederick J. Sydnor (Claimant) petitions, pro se, for review of an order of the Unemployment Compensation Board of Review (Board) affirming the decision of the Unemployment Compensation Referee (Referee) finding him financially ineligible for unemployment compensation benefits

Page 379

because he was a " direct seller" under Section 4( l )(4)(20) of the Unemployment Compensation Law (Law).[1] For the following reasons, we affirm.

Between October, 2012, and September, 2013, Claimant performed services exclusively for 20/20 Communications, Inc. (Company) selling consumer products directly to customers in the field but not in the Company's permanent retail establishment. Claimant executed a sales representative agreement with the Company which designated Claimant as a " direct seller" for federal tax purposes and he was paid solely on commission.

Because he was unable to perform his outside field work for a period of time due to inclement winter weather, Claimant applied for unemployment compensation benefits for that timeframe. The Department of Labor and Industry (Department) denied benefits, finding Claimant to be financially ineligible under Section 404 of the Law[2] because he did not earn eligible wages because he was a " direct seller" and any amount did not count as wages.

Claimant appealed and at the hearing before the Referee,[3] testified that he had signed an independent contractor agreement and was a sales agent for the Company, going " door to door with Verizon FiOS." (Transcript of Testimony, 5/9/14, at 2-3.) He also testified that he was paid weekly, on a commission basis, and though the Company set the hours of his shifts, " [i]t was kind of a little flexible." ( Id. at 3.) He further testified that during his shifts, he was supervised by various general managers who would " constantly text or call [him] in the field to see how many sales [he] had, or, you know, keeping track to make sure [he] worked." ( Id. at 4.)

The Referee decided that Claimant was ineligible for benefits because he was an independent contractor under Section 4( l )(2)(B) of the Law, making him ineligible for benefits.[4] Claimant appealed to the Board, but since benefits were denied because he was a direct seller under Section 4( l )(4)(20) and not an independent contractor, the Board remanded to the Referee to develop the record for the Board to consider whether Claimant was a direct seller. The majority of Claimant's testimony at the remand hearing was a repetition of his testimony at the prior hearing, except ...


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