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UNEMPLOYMENT COMPENSATION BOARD REVIEW v. MILTON W. KESSLER (10/25/76)

decided: October 25, 1976.

UNEMPLOYMENT COMPENSATION BOARD OF REVIEW
v.
MILTON W. KESSLER, JR., APPELLANT



Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Milton W. Kessler, Jr., No. B-128032.

COUNSEL

Steven H. Lupin, for appellant.

Charles G. Hasson, Assistant Attorney General, with him Sydney Reuben, Assistant Attorney General, and Robert P. Kane, Attorney General, for appellee.

President Judge Bowman and Judges Crumlish, Jr., and Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 27 Pa. Commw. Page 2]

Milton W. Kessler, Jr. (claimant) appeals from an adverse decision of the Unemployment Compensation Board of Review (Board), dated October 3, 1975.

On April 29, 1975, while receiving unemployment benefits resulting from a qualifying separation from

[ 27 Pa. Commw. Page 3]

    a previous employer, the claimant began working on a commission basis as a full-time salesman for Lamson Fasteners (Lamson), a Philadelphia business organization, soliciting orders for industrial fasteners from business establishments in "Eastern Pennsylvania." The claimant testified that Lamson did not provide him with sales leads nor equip him with sales aids, such as price lists or catalogues. He himself determined what businesses to visit and, only when he ascertained an enterprise's requirements for industrial fasteners, did he contact Lamson so that a price quotation could be made. At the time of the referee's hearing on July 2, 1975, the claimant was still involved in this venture, but had not yet been compensated by Lamson for his efforts.

On the basis of this testimony, the Board found that Lamson neither controlled, nor had the right to control, the claimant's activities as a salesman, and that, therefore, being self-employed, he was no longer eligible for unemployment compensation benefits, such benefits being prohibited under Section 402(h) of the Unemployment Compensation Law*fn1 (Act), 43 P.S. ยง 802(h). This appeal followed.

In unemployment compensation cases, our scope of review is limited to questions of law, and, in the absence of fraud, to a determination of whether or not the findings of the Board are supported by the evidence, giving the party prevailing below the benefit of all reasonable and logical inferences. Rice v. Unemployment Compensation Board of Review, 19 Pa. Commonwealth Ct. 592, 338 A.2d 792 (1975).

[ 27 Pa. Commw. Page 4]

While the Board's decision here may at first appear to penalize an ambitious person who, after having been unemployed for three (3) months, sought to become self-supporting through his own business initiatives, it must be borne in mind that the Act's denial of benefits to self-employed individuals is grounded on sound policy, and that the Act is not designed "to insure a weekly income to those engaged in business ventures who may not realize a profit therefrom during various weekly periods." Muchant Unemployment Compensation Case, 175 Pa. Superior Ct. 85, 88, 103 A.2d 438, 440 (1954). Our task on review, ...


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