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DEPRIEST UNEMPLOYMENT COMPENSATION CASE. (12/14/61)

December 14, 1961

DEPRIEST UNEMPLOYMENT COMPENSATION CASE.


Appeals, Nos. 253 and 254, April T., 1961, by claimant, from decision of Unemployment Compensation Board of Review, No. B-63949, in re claims of Harry B. DePriest et al. Decision affirmed.

COUNSEL

James P. Bryan, with him Bryan, Joslin and Bryan, for appellant.

Sydney Reuben, Assistant Attorney General, with him David Stahl, Attorney General, for Unemployment Compensation Board of Review, appellee.

Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).

Author: Flood

[ 196 Pa. Super. Page 612]

OPINION BY FLOOD, J.

The claimants, husband and wife, have appealed from a decision of the Unemployment Compensation Board of Review denying them compensation on the ground that they were engaged in self-employment during the weeks for which compensation was claimed.

The husband-appellant is the president and majority stockholder of a family corporation which owns and operates the Kelso Beach Hotel located at Erie, Pennsylvania. The only other stockholders in the corporation

[ 196 Pa. Super. Page 613]

    are the wife-appellant, who is secretary and treasurer of the corporation, and the appellants' daughter, who is vice president and assistant secretary.

The Kelso Beach Hotel is a seasonal hotel which, depending upon the weather, generally opens about Memorial Day and closes on or about Labor Day. During the 1960 season the appellants spent full time attending to the corporation's affairs and were paid wages. In this connection the husband-appellant testified that he and his wife received remuneration as employes but did not draw any compensation as officers. He stated that they "employed a couple to be employed as manager and assistant manager to take my place and my wife's place in the event we could obtain suitable employment". Apparently, the appellants' wages were subject to the usual social security deductions and the corporation also paid social security and unemployment compensation taxes on their wages.

In their applications for unemployment compensation benefits, filed in January 1961, the claimants stated that they were unemployed because "hotel closed at end of resort season". When asked if he had not created his own unemployment by closing down at the end of the season, the husband-appellant testified: "Well the weather is what dictates when you close. It is a question of economics ...: Finally, when asked whether he intended to retain the hotel, the husband-appellant testified: "The hotel will be reopened."

The Bureau of Employment Security and the referee concluded that the appellants were ineligible for compensation because they were engaged in "self-employment" within the meaning of Section 402(h) of the Unemployment Compensation Law, as amended, 43 PS ยง 802, during the period for which compensation was sought. The bureau and the referee also concluded that the ...


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