W. J. Krencewicz, Shenandoah, Adolph A. Rugienius, Frackville, for appellant.
William L. Hammond, Sp. Dep. Atty. Gen., for appellee.
Before Rhodes, P. J., and Hirt, Reno, Ross, and Wright, JJ.
[ 174 Pa. Super. Page 413]
The Unemployment Compensation Board of Review denied appellant's claims for benefits, basing its decision upon the referee's findings of facts which it affirmed: '1. The claimant had been employed intermittently as a jig runner by the Morea Mining Company, Morea Colliery, Pennsylvania. His last day of work was December 23, 1952, when he was laid off due to lack of work. 2. The claimant and his wife
[ 174 Pa. Super. Page 414]
operate a bar and liquor establishment since September 1949. The liquor license issued by the Pennsylvania Liquor Control Board is in the name of Andrew [appellant] and Catherine Martin. During the period involved herein the claimant devoted five hours each day in the operation of this business.'*fn1
The conclusion of the referee, also affirmed by the Board, follows: 'While the claimant contends that the income derived from the business is solely his wife's, he admitted that the license is in both names and during the period in question he devoted five hours each day in the operation of the business. He, therefore, cannot be regarded as unemployed and must be disqualified under Section 401 of the [Unemployment Compensation] Law.'
The referee also concluded that appellant was not unemployed within the meaning of the law, supra, § 4(u), which until 1951 read as follows: 'An individual shall be deemed unemployed with respect to any week during which he performs no services and with respect to which no remuneration is paid or payable to him, * * *.' This provision was, however, clarified by the amending Act of September 29, 1951, P.L. 1580, § 4(u), 43 P.S. § 753(u), and now reads: 'An individual shall be deemed unemployed (I) with respect to any week (i) during which he performs no services for which remuneration is paid or payable to him and (ii) with respect to which no remuneration is paid or payable to him, * * *.' (Italics in the amending Act.)
Here the able deputy attorney general argued that since appellant was engaged 'in his own business' he
[ 174 Pa. Super. Page 415]
was not unemployed and not available for suitable work. However, neither the referee nor the Board found, as a fact, that appellant was engaged 'in his own business.' The finding is merely that appellant 'and his wife operate a bar and liquor establishment', and the uncontradicted testimony of appellant and his wife is that the business was purchased with ...