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GRASAVAGE UNEMPLOYMENT COMPENSATION CASE. (11/15/62)

THE SUPERIOR COURT OF PENNSYLVANIA


November 15, 1962

GRASAVAGE UNEMPLOYMENT COMPENSATION CASE.

Appeal, No. 320, Oct. T., 1962, by claimant, from decision of Unemployment Compensation Board of Review, No. B-70997, in re claim of Pauline J. Grasavage. Decision affirmed.

COUNSEL

Patrick J. Toole, Jr., with him Thomas F. Burke, for appellant.

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

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Wright

[ 199 Pa. Super. Page 398]

OPINION BY WRIGHT, J.

On July 29, 1961, Pauline J. Grasavage filed an application for unemployment compensation benefits based upon the termination of purported employment with the Tulsa-Esso Service Station, Pittston, Pennsylvania. This service station was allegedly operated by claimant's husband in partnership with his foster mother. Claimant's application was disallowed by the Bureau of Employment Security, the Referee, and the Board of Review on the ground that her services were excluded from covered employment by the provisions of Section 4(L)(4)(4) of the Unemployment Compensation Law. Act of December 5, 1936, P.L. (1937) 2897, 43 P.S. 753. This appeal followed.

Section 4 of the statute reads in pertinent part as follows: "The following words and phrases, as used in this act, shall have the following meanings ... (L) ... (4) The word 'employment' shall not include ... (4) Service performed by an individual in the employ of his son, daughter, or spouse, and service performed by a child under the age of twenty-one (21) in the employ of his father or mother".

In the instant case the Referee reasoned as follows: "There is no question in the mind of the Referee that the claimant's employment was questionable. The records indicate that she was not permanently employed and whether or not she performed any work was not definitely determined. The fact is that she was employed by her husband". In affirming the Referee's decision, the Board of Review found that, while the service station was allegedly a partnership, claimant was in actual fact employed by her husband. Appellant's contention before us is that her employer was not her husband as an individual, but as co-owner of a separate business entity, namely, the alleged partnership.

Appellant argues that a claimant may be denied benefits only by explicit language in the statute, citing

[ 199 Pa. Super. Page 399]

    investigation to be made of the business operated as Tulsa-Esso Service Station. The result of this investigation is detailed in the record. It does not disclose any interest whatever in the foster mother. No partnership agreement was exhibited, and there was no partnership bank account. The foster mother was not even called as a witness. It seems apparent that the business was actually operated as an individual proprietorship. In fact, the case of Commonwealth v. Grasavage, 27 Pa. D. & C. 2d 315, decided by the Court of Common Pleas of Luzerne County, discloses that the official inspection permit was issued in the individual name of Edward J. Grasavage.

The unemployment compensation authorities are not required to ignore the true of affairs, but may look into the business entity to determine whether or not there exists in good faith the employer-employe relationship which is contemplated by the Unemployment Compensation Law: DePriest Unemployment Compensation Case, 196 Pa. Superior Ct. 612, 177 A.2d 20; DiGregorio Unemployment Compensation Case, 197 Pa. Superior Ct. 562, 179 A.2d 665. The findings of the Board as to the facts, if supported by the evidence, are binding on appeal: Irvin Unemployment Compensation Case, 198 Pa. Superior Ct. 308, 181 A.2d 854.

Disposition

Decision affirmed.


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