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SAMUEL E. JOHNSON v. COMMONWEALTH PENNSYLVANIA (11/12/82)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: November 12, 1982.

SAMUEL E. JOHNSON, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT

Appeal from the Order of the Unemployment Compensation Board of Review in the case of In Re: Claim of Samuel E. Johnson, No. B-189246.

COUNSEL

Germaine Ingram, for petitioner.

Charles Hasson, Associate Counsel, with him James K. Bradley, Associate Counsel, and Richard L. Cole, Jr., Chief Counsel, for respondent.

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

Author: Crumlish

[ 70 Pa. Commw. Page 16]

The Unemployment Compensation Board of Review affirmed a referee's decision denying benefits to Samuel E. Johnson and assessing a fault overpayment. We affirm.

Johnson, an automobile mechanic, was laid off and initially awarded benefits. Subsequently, he was accused of receiving remuneration at another job*fn1 while collecting benefits.

[ 70 Pa. Commw. Page 17]

The referee denied benefits, concluding that Johnson was not unemployed under Sections 401*fn2 and 4(u)*fn3 of the Unemployment Compensation Law. Johnson contends that he received no monetary remuneration for his services.*fn4 We have, however, already concluded that remuneration is not limited to wages and paychecks. Unemployment Compensation Board of Review v. Miedama, 27 Pa. Commonwealth Ct. 207, 365 A.2d 900 (1976).

Johnson also asserts that his employer should have been compelled to testify. In situations where an employer's testimony is crucial, such testimony should be compelled. Unemployment Compensation Board of Review v. Cooper, 25 Pa. Commonwealth Ct. 256, 360 A.2d 293 (1976). But, we conclude, here that the employer's testimony was not crucial to the outcome because there was sufficient evidence presented.*fn5

Johnson further asserts that the Board's decision cannot be based solely on the referee's disbelief of his

[ 70 Pa. Commw. Page 18]

    testimony, which he claims is the only competent evidence; however, the referee may reject even uncontroverted testimony. Edelman v. Unemployment Compensation Board of Review, 10 Pa. Commonwealth Ct. 275, 310 A.2d (1973).

When the party with the burden of proof below*fn6 has not prevailed, our scope of review is limited to determining whether the Board has legally erred or whether there is substantial evidence to support its conclusions. H & A Sales Co. v. Unemployment Compensation Board of Review, 63 Pa. Commonwealth Ct. 304, 437 A.2d 1296 (1981). The Board's conclusions were based on substantial evidence.

Finally, the Board ruled under Section 804(a)*fn7 of the Law that Johnson must repay a $4,230 fault overpayment, based on the unemployment benefits Johnson received during the period that the Board determined he was employed. The assessment of the fault overpayment was correct in light of the Board's findings that Johnson was employed.

Affirmed.

Order

The Unemployment Compensation Board of Review Order Number B-189246, dated October 31, 1980 is hereby affirmed.

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

Disposition

Affirmed.


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