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RUSSELL AUSBURN v. COMMONWEALTH PENNSYLVANIA (03/23/82)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: March 23, 1982.

RUSSELL AUSBURN, 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 Russell Ausburn, No. B-187437.

COUNSEL

James A. Downey, III, Begley, Carlin, Mandio & Popkin, for petitioner.

Charles G. Hasson, Associate Counsel, with him Richard Wagner, Counsel, and Richard L. Cole, Jr., Chief Counsel, for respondent.

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

Author: Crumlish

[ 65 Pa. Commw. Page 414]

Russell Ausburn appeals an Unemployment Compensation Board of Review order which held him ineligible for benefits*fn1 and assessed a recoupment of overpayment in the amount of $3,960.00.*fn2 We affirm.

The relevant facts are not disputed. Ausburn began receiving benefits in September of 1979. Shortly thereafter, he organized and chartered a corporation to operate a tavern, serving as its president and being its sole shareholder. He continued to receive benefits, failing to notify the Office of Employment Security of this venture.

[T]he law of this Commonwealth has been that the positive act of establishing an independent business enterprise renders ineligible the principals involved for unemployment compensation benefits because they are self-employed persons.

Roberts v. Unemployment Compensation Board of Review, 55 Pa. Commonwealth Ct. 52, 54, 422 A.2d 911, 912 (1980). This Court, in Roberts, further rejected the claimant's argument that he continued to qualify because the business had not yet begun to generate income. Ausburn here raises the same argument and, again, we hold it is without merit.

Affirmed.

Order

The order of the Unemployment Compensation Board of Review, No. B-187437, Dated September 3, 1980, is affirmed.

Judge Palladino did not participate in the decision in this case.

Disposition

Affirmed.


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