Venango Newspapers v. Unemployment Compensation Board of Review

631 A.2d 1384, 158 Pa. Commw. 379, 1993 Pa. Commw. LEXIS 573
CourtCommonwealth Court of Pennsylvania
DecidedSeptember 10, 1993
Docket537, 538 C.D. 1993
StatusPublished
Cited by38 cases

This text of 631 A.2d 1384 (Venango Newspapers 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
Venango Newspapers v. Unemployment Compensation Board of Review, 631 A.2d 1384, 158 Pa. Commw. 379, 1993 Pa. Commw. LEXIS 573 (Pa. Ct. App. 1993).

Opinions

PELLEGRINI, Judge.

Venango Newspapers (Venango) appeals the orders of the Unemployment Compensation Board of Review (Board) finding that Paul A. Ghering, Jr. and Richard N. Beightol, Jr. (Claimants) to have been employees rather than independent contractors.

Each Claimant contracted with Venango to deliver newspapers to Venango’s subscribers. When they began delivering newspapers, Claimants had been receiving unemployment compensation benefits as a result of being separated from employment with previous employers. After delivering newspapers for approximately six months, Beightol decided to quit, while Ghering’s contract was terminated after nine months for non-performance. Both Claimants applied for unemployment compensation benefits, each contending that he was eligible because he was an employee of Venango, not an independent contractor. Beightol contended that he was entitled to benefits because he had good cause to quit, while Ghering claimed that his conduct that caused his discharge was not “willful.” Venango opposed both claims contending that Claimants were not employees but independent contractors, and further, that [382]*382Beightol voluntarily quit and Ghering was discharged for nonperformance.

The Board, finding them employees and not independent contractors,1 nonetheless found Claimants not entitled to benefits because Beightol did not have good cause to quit and Ghering was discharged for just cause.2 Both, however, remained entitled to benefits as a result of their separation from previous employers, albeit reduced because of their conduct in either voluntarily quitting or being discharged for willful misconduct.3 Based upon the Board’s conclusion that in finding that Claimants were Venango employees, Venango became one of Claimants’ “base-year employers.”4 As a base-year employer, Venango’s unemployment insurance account was proportionately charged, along with other base-year employers, to pay Claimants’ partial unemployment compensation benefits. Venango filed the instant appeals, which by order dated July 13, 1993, were consolidated.

I.

The Board contends that we should quash Venango’s appeal. The Board recognizes that because of its finding that Claimants are Venango’s employees, Venango becomes their base-year employer and the partial benefits each Claimant receives [383]*383chargeable, not only against their previous employers, but also to Venango’s unemployment insurance account. 43 P.S. § 782(a)(1).5 Because it has the ability to file the petition to seek relief6 from charges and the strong likelihood that the petition would be granted, the Board contends that Venango is not “aggrieved” and, consequently, under the provisions of both Section 702 of the Administration Agency Law and Pennsylvania Rules of Appellate Procedure 501, it lacks standing to appeal the orders.7

The Board’s contention ignores that what determines whether a person is aggrieved is not some speculative remedy that possibly will remove the harm caused by the original order, but the effect the order has on the party taking the appeal. If the order causes direct harm, the party is aggrieved and has a right to appeal. By finding that Claimants were Venango’s employees, and Venango a base-year employer is required to contribute to Claimants benefits, the Board’s order has a direct adverse pecuniary effect making Venango “aggrieved” and giving it the right to appeal.

II.

In finding that Venango had an employer-employee relationship -with Claimants rather than being independent contrac[384]*384tors, the Board, in addition to the Claimants being paid 20.32 cents per paper delivered and mileage, relied on the following findings of fact:8

3. The Claimant did sign a contract to provide services to the employer.
4. The employer did required [sic] the claimant to pick up the newspapers any time after 12:30 a.m. and to have the newspapers delivered by 6:30 a.m. The claimant was also required to deliver advertisers within a three-day period of time during his customary time frame for delivering newspapers.
5. The carrier is required to provide prompt, dependable delivery service.
6. The claimant does not have any ownership in the business of Venango Newspapers.
7. The claimant does not have special licenses or an established business.
8. The claimant does not have any financial risk involved other than the claimant does drive his own vehicle and provides all expenses and insurance for that vehicle.
9. The employer also provided additional payment of 5 cents a tube and extra mileage for the set-up of newspaper tubes and placement of stickers on the tube.
10. The employer had the right to adjust the claimant’s amount of deliveries by either increasing or decreasing the amount.
11. The employer did provide an incentive of $2 for every new start.
12. The carrier could obtain new starts from other routes other than his own.
13. The claimant was responsible to provide and pay a substitute if he was unable to perform his job duties.
[385]*38514. The employer does all the billing and collection for payment of the newspapers.
15. The employer provides the carrier with a route listing and the claimant cannot deliver outside his route.
16. The employer provided the claimant with newspaper tubes.
17. The claimant lacked the authority to negotiate the price of the newspaper with the customer.
18. The employer paid for any excess mileage on the claimant’s vehicle.

Venango contends that these findings establish that Claimants were not employees but independent contractors, and, as such, were ineligible to receive benefits under Section 402(h) of the Law. Section 402(h) renders a claimant ineligible to receive benefits in any week in which the claimant is engaged in self-employment. What constitutes employment, in turn, is delineated by Section 4(1 )(2)(B) of the Law, which provides in part:

[sjervices 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 the contract for 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. § 753(( )(2)(B).

This section creates a two-pronged test to determine whether a person is self-employed and not entitled to unemployment compensation benefits under Section 402(h).

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Cite This Page — Counsel Stack

Bluebook (online)
631 A.2d 1384, 158 Pa. Commw. 379, 1993 Pa. Commw. LEXIS 573, Counsel Stack Legal Research, https://law.counselstack.com/opinion/venango-newspapers-v-unemployment-compensation-board-of-review-pacommwct-1993.