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LEONARD LOGUT v. COMMONWEALTH PENNSYLVANIA (03/03/80)

decided: March 3, 1980.

LEONARD LOGUT, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW AND NORTH AMERICAN FENCING CORPORATION, RESPONDENTS



Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Leonard Logut, No. B-164032.

COUNSEL

Louis H. Ceraso, for petitioner.

Gary J. Marini, Assistant Attorney General, with him Richard Wagner, Chief Counsel and Edward G. Biester, Jr., Attorney General, for respondents.

Judges Wilkinson, Jr., Mencer and Craig, sitting as a panel of three. Opinion by Judge Wilkinson, Jr. President Judge Bowman did not participate in the decision in this case.

Author: Wilkinson

[ 49 Pa. Commw. Page 576]

Petitioner (claimant) brings this appeal to challenge the denial of unemployment compensation benefits for the compensable weeks ending December 3, 1977 through February 25, 1978 and the assessment of a fault overpayment in the amount of $1,596.00. We affirm the denial of benefits but reverse the determination on the fault overpayment.

Claimant, employed as a fencing installer, began receiving unemployment compensation benefits following a qualifying separation on September 21, 1977. The denial of benefits for the compensable weeks at issue was based on the conclusion that claimant was then engaged in self-employment and ineligible pursuant to Section 402(h) of the Unemployment Compensation Law, (Law), Act of December 5, 1936, Second

[ 49 Pa. Commw. Page 577]

Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. ยง 802(h),*fn1 which provides in pertinent part:

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

(h) In which he is engaged in self-employment. . . .

At the referee's hearing claimant and two representatives of employer testified. According to claimant he began advertising in December, 1977 under the name Logut Fencing, which was registered as a fictitious name on March 22, 1978. Although strenuously denied by claimant, both employer representatives testified the claimant was bidding on jobs sometime before December, 1977. On the basis of the foregoing contradictory evidence the referee made the following finding:

3. In late November or at the beginning of December 1977, claimant began soliciting business for himself in the fencing field, and claimant commenced in December 1977 ...


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