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MANDEL v. UNEMPLOYMENT COMPENSATION BOARD REVIEW (04/26/73)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: April 26, 1973.

MANDEL
v.
UNEMPLOYMENT COMPENSATION BOARD OF REVIEW

Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Milton H. Mandel, No. B-111006.

COUNSEL

Philip D. Lauer, for appellant.

Sydney Reuben, Assistant Attorney General, with him Israel Packel, Attorney General, for appellee.

Judges Wilkinson, Jr., Mencer and Rogers, sitting as a panel of three. Opinion by Judge Wilkinson.

Author: Wilkinson

[ 8 Pa. Commw. Page 478]

The appellant has been denied unemployment compensation by the Bureau of Employment Security, the Referee, and the Board of Review. In each instance, the reason for the denial was the same. He was ineligible by virtue of being an unemployed businessman rather than an unemployed worker. We must affirm.

The law with regard to this is quite clear and has been ably reviewed by Judge Blatt in the recent decision of this Court in Gilbert v. Unemployment Compensation Board of Review, 7 Pa. Commonwealth Ct. 406, 299 A.2d 695 (1973). The cases are collected there, as well as a clear discussion of our Supreme Court's most recent decision on this subject in Starinieri Unemployment Compensation Case, 447 Pa. 256, 289 A.2d 726 (1972). In that case, the Supreme Court was unanimous in the view that an ex-employee who had a substantial degree of control of the business in which he was engaged was an unemployed businessman and ineligible for unemployment compensation under Section 402 of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess. (1937), P.L. 2897, as amended, 43 P.S. ยง 802. The only dissent in that case was by Justice Pomeroy who stated in his opinion that the unemployed individual, in order to be classified as an unemployed businessman, must have 50% control, either alone or with other members of his family. In the case before us, the testimony clearly supports Findings of Fact 2 and 3:

"2. The claimant is president of the corporation and is chairman of the Board of Directors of this corporation.

[ 8 Pa. Commw. Page 479]

"3. Claimant owns 30% of the stock of the corporation and his wife owns 60% of the stock of the corporation."

Therefore, appellant is clearly disqualified under the test of either the majority or the dissent in Starinieri.

Accordingly, we enter the following

Order

Now, April 26, 1973, the order of the Unemployment Compensation Board is affirmed and benefits are denied to Milton H. Mandel.

Disposition

Affirmed.

19730426

© 1998 VersusLaw Inc.



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