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GEORGE PAVALONIS v. COMMONWEALTH PENNSYLVANIA (03/04/81)

decided: March 4, 1981.

GEORGE PAVALONIS, JR., 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 George Pavalonis, Jr., No. B-174400.

COUNSEL

George J. Nagle, for petitioner.

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

Judges Craig, Williams, Jr. and Palladino, sitting as a panel of three. Opinion by Judge Palladino.

Author: Palladino

[ 57 Pa. Commw. Page 290]

Petitioner (claimant) brings this appeal from an order of the Unemployment Compensation Board of

[ 57 Pa. Commw. Page 291]

Review (Board) which affirmed a referee's decision denying unemployment compensation benefits to the claimant for the weeks ending October 8, 1977 through April 22, 1978. We affirm.

After being laid off his former job, claimant applied for and received unemployment compensation benefits from January of 1977 until April of 1978 when he registered a fictitious name, purchased business cards, and "officially" went into business as a masonry contractor. In 1979, acting on an anonymous tip, the Bureau (now Office) of Employment Security (Bureau) conducted an audit on the claimant and discovered that he had been working as a masonry contractor since the first week of October, 1977. Thereafter, the Bureau denied benefits to the claimant for the weeks ending October 8, 1977 through April 22, 1978 and assessed him for fault overpayments totaling $3,891 pursuant to Section 804(a) of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 874(a).

On appeal the referee affirmed the Bureau's decision concluding that the claimant had been rendered ineligible for benefits during the period in question by Section 402(h) of the Law, 43 P.S. § 802(h), which provides in relevant part that "[a]n employe shall be ineligible for compensation for any week -- (h) [i]n which he is engaged in self-employment. . . ."*fn1 The Board subsequently affirmed this decision adopting the referee's findings of fact and conclusions of law.

Before this Court the claimant does not contest the fact that he performed masonry work prior to

[ 57 Pa. Commw. Page 292]

April 22, 1978, but instead alleges that the referee and the Board erred in concluding he was self-employed since his status on those days he had actually worked had been that of an employe. In light of the above, the claimant alleges that he was entitled to collect full unemployment compensation benefits for certain weeks prior to April 22, 1978 in which he performed no masonry work, and reduced benefits, pursuant to Section 404(d) of the Law, 43 P.S. § 804(d), for those weeks in which he was actually employed. Since in ...


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