Tri-State Scientific v. Unemployment Compensation Board of Review

589 A.2d 305, 138 Pa. Commw. 676, 1991 Pa. Commw. LEXIS 184
CourtCommonwealth Court of Pennsylvania
DecidedApril 3, 1991
Docket1333 C.D. 1990
StatusPublished
Cited by15 cases

This text of 589 A.2d 305 (Tri-State Scientific v. Unemployment Compensation Board of Review) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tri-State Scientific v. Unemployment Compensation Board of Review, 589 A.2d 305, 138 Pa. Commw. 676, 1991 Pa. Commw. LEXIS 184 (Pa. Ct. App. 1991).

Opinions

[678]*678SMITH, Judge.

Tri-State Scientific (Tri-State) appeals from a May 8, 1990 order of the Unemployment Compensation Board of Review (Board) which affirmed a referee’s decision granting benefits to Judith Joseph (Claimant) pursuant to Sections 401(a) and 404 of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. §§ 801(a) and 804. The issue on appeal is whether the Board erred in concluding that Claimant was a Tri-State employee eligible to receive unemployment compensation, rather than a self-employed independent contractor disqualified from receiving benefits under the Law.

On October 1, 1989, Claimant applied for unemployment compensation with the Office of Employment Security (OES) which denied her application after determining that she was not financially eligible for benefits under Section 404 of the Law since Claimant did not have sufficient wages during the base year to qualify for benefits. Claimant filed an appeal beyond the fifteen-day appeal period which the Board determined to be timely due to good cause for the delay. A heáring was scheduled before a referee for March 13, 1990. On March 6, 1990, Tri-State sent a letter to the referee requesting a continuance due to the unavailability of its witness, Robert L. Havlicsek, President of Tri-State, who was scheduled to be on vacation from March 10 through March 17. The record indicates that the referee denied the continuance request. N.T., p. 1. Tri-State nevertheless failed to appear at the hearing.

After considering the testimony of Claimant and an OES representative, the referee reversed OES and determined that Claimant was eligible to receive weekly benefits at a rate of $266 up to the maximum benefit entitlement of $6,916. Tri-State appealed to the Board asserting that Claimant was never a Tri-State employee, and therefore she was ineligible to collect benefits. The Board, affirming the [679]*679referee’s decision, concluded that Claimant was financially eligible for benefits under the Law.1

Tri-State argues on appeal that Claimant was a self-employed independent contractor precluded from receiving benefits under Section 4(Z)(2)(B) of the Law, 43 P.S. § 753(i)(2)(B). In support of its argument, Tri-State contends the following: (1) that there was no contract of employment between Claimant and Tri-State; (2) that Claimant was not subject to the control of Tri-State; (3) that Claimant received no salary from Tri-State, but received payments of $2,000 per month as an advance on her five percent commission; (4) that Claimant received no fringe benefits from Tri-State such as accident, health, or life insurance; and (5) that Tri-State withheld neither social security tax nor federal, state, or local income taxes from Claimant’s remuneration.

Tri-State further argues that the decision of the Board is insufficient as a matter of law because the Board failed to make findings of fact necessary to resolve the issues raised in this appeal. In particular, Tri-State contends that the Board failed to find that Claimant was an employee within the meaning of the Law, and therefore the record is incomplete and the case should be remanded for further hearing. Tri-State further contends that it never raised the issue of Claimant’s employment status before the referee because it never received notice that the referee denied its continuance request, and consequently Mr. Havlicsek failed to attend the scheduled hearing to testify.2

This Court preliminarily notes that Tri-State did not raise the issue of the referee’s denial of a continuance before the Board and cannot do so here. A party who has [680]*680been duly notified of a hearing and who fails to attend that hearing after his or her continuance request has been denied by a referee may not challenge denial of the continuance when the issue was not raised in the notice of appeal to the Board. Medical College of Pennsylvania v. Unemployment Compensation Board of Review, 59 Pa.Commonwealth Ct. 411, 429 A.2d 1270 (1981). Under such circumstances, the party who failed to attend the scheduled hearing has failed to take the necessary steps “to protect its own interests.” Sanders v. Unemployment Compensation Board of Review, 105 Pa.Commonwealth Ct. 372, 376, 524 A.2d 1031, 1033 (1987); Medical College of Pennsylvania, 59 Pa.Commonwealth Ct. at 414, 429 A.2d at 1272. Moreover, it is well settled that issues not specified in an appeal before the Board are waived for purposes of review by this Court. Merida v. Unemployment Compensation Board of Review, 117 Pa.Commonwealth Ct. 181, 543 A.2d 593 (1988), appeal dismissed, 524 Pa. 249, 570 A.2d 1320 (1990). Thus, Tri-State has waived its right to challenge the denial of its continuance request.

However, with regard to the issue of the Board’s deficient findings, this Court agrees that the Board did not resolve all of the factual issues necessary to draw the legal conclusion that Claimant was a Tri-State employee. The Board issued the following pertinent Findings of Fact:

1. The claimant was last employed by Tri-State Scientific as a medical equipment sales person from May 2, 1988 at a salary of $2,000.00 a month plus five percent commission, and her last day of work was August, 1989. The claimant’s separation from work is not at issue in this appeal.
2. The claimant filed an application for benefits with an effective date of October 1,1989, thereby establishing a base year consisting of July 1, 1988 to June 30, 1989.
3. Claimant, during her base year, earned the following wages as reported to Employment Security. (Emphasis Added.)
[681]*681Employer Amount
3rd Qtr. 1988 Mead Johnson $ 700.00
4th Qtr. 1988 Mead Johnson 5,175.00
1st Qtr. 1989 0.00
2nd Qtr. 1989 0.00
4. Including her wages from Tri-State Scientific, claimant, during her base year, earned the following wages:
Employer Amount
3rd Qtr. 1988 Mead Johnson $ 700.00
Tri-State 6,632.00
4th Qtr. 1988 Mead Johnson 5,175.00
Tri-State 6,514.00
1st Qtr. 1989 Tri-State 5,340.50
2nd Qtr. 1989 Tri-State 6,466.90

The term employee is not defined by the Law; however Section 4(i) of the Law, 43 P.S. § 758(1), defines “employment” as follows:

(1) (l) ‘Employment’ means all personal service performed for remuneration by an individual under any contract of hire, express or implied, written or oral, including service in interstate commerce, and service as an officer of a corporation.

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Tri-State Scientific v. Unemployment Compensation Board of Review
589 A.2d 305 (Commonwealth Court of Pennsylvania, 1991)

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Bluebook (online)
589 A.2d 305, 138 Pa. Commw. 676, 1991 Pa. Commw. LEXIS 184, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tri-state-scientific-v-unemployment-compensation-board-of-review-pacommwct-1991.