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JOSEPH G. VUKNIC v. COMMONWEALTH PENNSYLVANIA (09/07/79)

decided: September 7, 1979.

JOSEPH G. VUKNIC, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Joseph G. Vuknic, No. B-150113.

COUNSEL

R. Wallace Maxwell, with him Maxwell & Davis, for petitioner.

Michael Klein, Assistant Attorney General, with him Gerald Gornish, Acting Attorney General, for respondent.

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

Author: Crumlish

[ 45 Pa. Commw. Page 513]

The Unemployment Compensation Board of Review (UCBR) denied Joseph G. Vuknic compensation, citing Section 402(h) of the Unemployment Compensation Law,*fn1 43 P.S. ยง 802(h).

We remand for further findings.

UCBR found that Vuknic was validly separated from his employment as a welder and pipe fitter at Consolidated Electric Company and filed for compensation on January 30, 1977; and that Vuknic had built Carmichael's Golf Course which is now owned by Tranquil Enterprises, Inc., in which Vuknic is a major shareholder and "moving force." It found further that Vuknic had in the past disengaged himself from control of the corporation and transferred his stock holdings to his children but that he later regained control of the business when it suffered under his sons' management. He was elected president and so served until November 21, 1976, when, upon his resignation, his wife succeeded him as president of the corporation.

[ 45 Pa. Commw. Page 514]

Section 402(h) provides in pertinent part:

An employe shall be ineligible for compensation for any week --

(h) In which he is engaged in self-employment: Provided, however, That an employe who is able and available for full-time work shall be deemed not engaged in self-employment by reason of continued participation without substantial change during a period of unemployment in any activity including farming operations undertaken while customarily employed by an employer in full-time work whether or not such work is in 'employment' as defined in this act and continued subsequent to separation from such work when such activity is not engaged in as a primary source of livelihood.

The term "self-employed" is not statutorily defined but embraces within its meaning those who by virtue of their position in a corporation and ownership of stock can exercise substantial control over the operation of a business enterprise. Starinieri Unemployment Compensation Case, 447 Pa. 256, 289 A.2d 726 (1972). Vuknic's testimony that he no longer actively participated in the operation of the golf course is not legally dispositive since active participation is not a ...


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