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CLARENCE E. KIRK v. COMMONWEALTH PENNSYLVANIA (02/25/81)

decided: February 25, 1981.

CLARENCE E. KIRK, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT. CAROL K. KIRK, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeals from the Order of the Unemployment Compensation Board of Review in the cases of Clarence E. Kirk, No. B-176601 and Carol K. Kirk, No. B-176602.

COUNSEL

John R. Kennel, II, Gibbel & Kraybill, for petitioners.

Richard Wagner, Chief Counsel, with him Charles G. Hasson, Assistant Attorney General, and Harvey Bartle, III, Acting Attorney General, for respondent.

Judges Wilkinson, Jr., MacPhail and William, Jr., sitting as a panel of three. Opinion by Judge Wilkinson, Jr.

Author: Wilkinson

[ 57 Pa. Commw. Page 93]

Petitioners (claimants), husband and wife and former employees of the same concern, appeal from two decisions and orders of the Unemployment Compensation

[ 57 Pa. Commw. Page 94]

Board of Review (Board) affirming the decisions of the referee denying benefits for the compensable weeks ending June 9, 1979 through July 7, 1979. Benefits, which had been paid since January, 1979, following qualifying separations, were denied pursuant to Section 402(h) of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. ยง 802(h), which provides that:

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 . . . 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.

Based on the testimony elicited at an August 14, 1979 hearing and on a June 15, 1979 "Summary of Interview," the Board made the following relevant findings of fact:

3. In the beginning of June, 1979, prior to the compensable period in issue, the claimant[s] . . . received approval from a bank for a business loan for the purpose of starting a landscaping business. In June, 1979 the claimant and his wife submitted a bid to ...


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