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UNEMPLOYMENT COMPENSATION BOARD REVIEW COMMONWEALTH PENNSYLVANIA v. CATHERINE D. FINN (07/16/76)

decided: July 16, 1976.

UNEMPLOYMENT COMPENSATION BOARD OF REVIEW OF THE COMMONWEALTH OF PENNSYLVANIA
v.
CATHERINE D. FINN, APPELLANT



Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Catherine D. Finn, No. B-124381.

COUNSEL

John R. Bonner, with him Casale & Bonner, for appellant.

Daniel R. Schuckers, Assistant Attorney General, with him Sydney Reuben, Assistant Attorney General, and Robert P. Kane, Attorney General, for appellee.

President Judge Bowman and Judges Kramer and Mencer, sitting as a panel of three. President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers and Blatt. Judge Kramer did not participate. Opinion by Judge Blatt. Dissenting Opinion by Judge Mencer. Judge Rogers joins in this dissent.

Author: Blatt

[ 25 Pa. Commw. Page 513]

On or about September 13, 1973, Catherine D. Finn (claimant) was laid off from her employment after sixteen years with T.R.W., Inc., Sunbury, Pennsylvania and her application for unemployment compensation benefits, dated June 30, 1974, was denied on September 26, 1974 by the Bureau of Employment Security (Bureau). The Bureau found that on June 3, 1974 "the claimant became a partner and partowner with her husband" of a hotel and bar, it being admitted that her name was on the title to the real estate and the liquor license, and, therefore, the Bureau

[ 25 Pa. Commw. Page 514]

    determined that, pursuant to Section 402(h) of the Unemployment Compensation Law*fn1 (Act), 43 P.S. ยง 802(h), the claimant was self-employed and so ineligible for benefits.*fn2 On her appeal to the Unemployment Compensation Board of Review (Board) a referee was designated to hold a hearing, after which he denied benefits and, upon further appeal, the Board issued an order affirming and adopting the referee's decision.

In this appeal from the Board's order, our scope of review is limited to a resolution of questions of law and, absent fraud, to a determination of whether or not the necessary findings of fact are supported by the evidence. Book v. Unemployment Compensation Board of Review, 24 Pa. Commonwealth Ct. 36, 354 A.2d 4 (1976).

[ 25 Pa. Commw. Page 515]

The legal issue presented here is whether or not the claimant is self-employed and so ineligible for compensation pursuant to Section 402(h) of the Act by virtue of her admitted one-half ownership of the hotel, bar, and liquor license. The referee made a finding that the "claimant receives no income from the hotel directly and she and her husband provide for themselves from the operation of the hotel and bar." He reasoned that, even if she did not participate in the operation of the business, she was engaged in self-employment because of her ownership interest in the business.

Self-employment is not defined in the Act, and a review of the relevant cases does not provide a working definition. Leary v. Unemployment Compensation Board of Review, 14 Pa. Commonwealth Ct. 409, 322 A.2d 749 (1974). Both ownership and active participation in a private enterprise have been deemed to constitute ...


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