OFFICIAL OPINION No. 23

OFFICIAL OPINION No. 23 Retirem ent Boarci--S tude;1.t nnrses--Retirement 1Je11efits 1. The student nurses enrolled at the Danville State Hospital from the late 1920s through early 1940s were also employees of the Commonwealth. 2. An employee is defined as any person holding a state position under the Commonwealth, employed on a yearly or monthly basis in any capacity. 71 P.S. §1725-102 (6) (a) . 3. Specific circumstances govern whether ~n .. employer-employee" relation- ship exsists. Honorable Richard L. Witmer Secretary State Employes' Retirement Board Harrisburg, Pennsylvania Dear Mr. Witmer: Harrisburg, Pa. March 22, 1973 You have requested our advice as to whether certain student nurses enrolled at the Danville State Hospital from the late 1920s through the early 1940s were state employees for purposes of retirement benefits. It is our opinion that such nurses were "employed" at Danville during the period in question and are entitled to full retirement credit for the period served. OPINIONS OF THE ATTORNEY GENERAL 55 In determining the nature of the relationship, we have relied strongly on the documentationl supplied to us by your staff. It appears that during the time in question, in order to attract per- sons into the nursing profession, the Danville State Hospital sponsored a work-training program during which time the stu- dent nurse would, for a salary, perform the services normally performed by hospital attendants, such as cleaning and bathing patients. The general duties were the same as those of atten- dants, with the additional classroom requirement. The State Employes' Retirement Code, 71 P.S. §1725-102 (6) (a). defines "state employee" to include "any person holding a state office or position under the Commonwealth, employed on a yearly or monthly basis by the State Government of the Com- monwealth, in any capacity whatsoever .. .. " This definition is substantially the same as the definition in the Act of June 27, 1923, p_ L. 858 which was in effect at the time in question. The issue raised is the narrow one of whether the evidence is sufficient to support a finding that the students were also em- ployees and within the coverage of the State Employes' Retire- ment Code. It is evident from reading of the printed portion of the contract and surrounding facts that an "employer-em- ployee" relationship did in fact exist with respect to the student nurses under the program at the Danville State Hospital. The emphasized portion of the contract reflects a degree of control 1. The documentation includes a printed card evidencing a contract of employment dated March 11, 1929. The pertinent printed portion of that card reads as follows : (Emphasis added.) "Date entering state service Previous service with other agencies Previous service with this hospital "In this agreement concluded this __ day of , 192_, the undersigned agrees to work for the Danville State H ospi.tal, Danville, Pa., in the capacity of , and further agrees to obey the printed and other rules of the Institution, with which she will make herself familiar. She agrees that she will in no respect neglect or maltreat any of the patients and that she will report any such neglect or maltreatment by others to the Superintendent of the Hospital. "In consideration of which this hospital agrees to pay the undersign- ed dollars per month." There is also a brochure dated October 18, 1929 describing the program which includes a "Schedule of Wages While in the Service" of the Hos- pital. This "Schedule" provid ~s wages for the student nurses. The bro- chure also contains the followmg language : "As the instruction is gratuitous, it is expected and should be consid- ered obligatory that Nurses prepare (sic ) for this higher service should make a reasonable return be (sic) r eina-ining in the employ of the in- stitution." (Emphasis added.) Finally, the brochure concludes with a notice to applicants in the following language: "Dear : Your application for a situation as Nurse in this Hospital is received. Please fill in (in your own handwriting) this blank, and return to me at your earliest convenience." 56 OPINIONS OF THE ATTORNEY GENERAL exercised over, and responsibility assu.m.ed by, the student nur- ses which has been held to be a determmmg factor as to whether an "employer-employee" relationship existed. Ven_ezia v. P.h~la. Electric Company, 317 Pa. 557 (1935); American Writing Machine Co. v. Unemployment Compensation Board of Review, 148 Pa. Superior Ct. 299 ( 1942); Blum Unemployment Compen- sation Case, 163 Pa. Superior Ct. 271 (1948). The final paragraph of the printed contract states that the nurses were to receive "consideration" in the form of monetary payment for the services agreed upon in the contract. This is the classic nature of an employment contract. In Venezia v. Phila. Electric Company, supra, at 559·, it was held that "the term em- ployee includes those who perform services for another for a valuable consideration." Turning to the brochure (Note 1 supra) we are of the opinion that the phrase "remaining in the employ of the institution" connotes the idea of continuing in the same status or position. To "remain in the employ" implies that an employer-employee" relationship did in fact exist and the previously existing status is to be continued. The brochure provides that the student nurses will be in the "service of the hospital and will be paid wages. Furthermore, it should be emphasized that the credibility of these documents is inherent in the fact that they are more than forty years old and were kept in the custody of the appropriate state officials. We have also considered the interpretation placed upon the arrangement at the time the student nurses were allowed to con- tribute to the retirement fund and were advised that retirement benefits would be commensurate to their contributions. It was only recently that the question arose as to their eligibility, based on an informal opinion rendered regarding students at a state forestry school. We find that opinion inapplicable because the forestry students were provided by the Commonwealth with board, lodging, laundry and an education, in exchange for pay- ment of $1.00 per day by the students. The student was not ac- corded any monetary payment by the Commonwealth as was the case with the student nurses who in fact received monetary payment in amounts between $40.00 and $50.00 per month dur- ing their student nurse days. We find the student forestry case to be distinguishable from the instant situation. Accordingly, it is our opinion, and you are advised that stu- dent nurse service be properly credited for retirement purposes. Our opinion is based on the specific circumstances of this case and is not to be consider~d a guideline to be generally applied to future cases. You are instructed to reflect this conclusion on the records of all those individuals whose student nurse time was questioned and who were part of the program. The com- pensation shall be based on the monthly salary and mainten- OPINIONS OF THE ATTORNEY GENERAL 57 anc~ allo~anc~ received by those employees. Those who had their service time removed should have that time restored and adjusted. Sincerely yours, IRAH. KEMP Deputy Attorney General ISRAEL P ACKEL Attorney General