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ROBERT E. KERSTETTER v. COMMONWEALTH PENNSYLVANIA (12/19/83)

decided: December 19, 1983.

ROBERT E. KERSTETTER, 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 Robert E. Kerstetter, No. B-203360.

COUNSEL

David S. Kluxen, Jr., Allison & Pyfer, for petitioner.

Richard F. Faux, Associate Counsel, with him Richard L. Cole, Jr., Chief Counsel, for respondent.

Judges Rogers, MacPhail and Barry, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 79 Pa. Commw. Page 167]

This is an appeal from an order of the Unemployment Compensation Board of Review which affirmed a

[ 79 Pa. Commw. Page 168]

    referee's determination that the appellant (claimant) was ineligible for benefits because he was self-employed and that the claimant had received a fault overpayment in the amount of $5,100.00.

The claimant filed an application for unemployment compensation benefits on December 21, 1980, reporting that he was separated from Quaker City Enterprises, Inc. (Quaker City) because of lack of work. His application was approved*fn1 and he received benefit checks in the amount of $170.00 per week, from December 27, 1980 until July 18, 1981, for a total of $5,100.00. On August 31, 1981, the Office of Employment Security (OES) determined that the claimant was self-employed in Quaker City's Lancaster, Pennsylvania operation and was therefore ineligible for benefits under 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. § 802(h). OES also assessed the claimant for a fault overpayment totaling $5,100.00 pursuant to Section 804(a) of the Law, 43 P.S. § 874(a). These determinations were upheld by the referee and the Board.

The relevant facts are not disputed. On November 20, 1980, the claimant entered into a written contract with Quaker City to be the manager of the company's new Lancaster County branch. Quaker City's business was that of cleaning and servicing ducts, chimneys, fireplaces and furnaces. The contract required the claimant to invest $5,000 for the opportunity to share in the branch's profits, and it provided that the claimant would be paid $300 each week in the form of a draw against his share of the profits.

The claimant testified that for the first four to five weeks, he received $300 each week but never received

[ 79 Pa. Commw. Page 169]

    any remuneration after December 13, 1980 because he was to be paid from the profits of the branch ...


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