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SYDNEY WOLFF v. COMMONWEALTH PENNSYLVANIA (01/05/84)

decided: January 5, 1984.

SYDNEY WOLFF, 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 Sydney Wolff, No. B-202352.

COUNSEL

Sydney Wolff, petitioner, for himself.

Charles G. Hasson, Acting Deputy Chief Counsel, with him Richard L. Cole, Jr., Chief Counsel, for respondent.

President Judge Crumlish, Jr. and Judges MacPhail and Doyle, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 79 Pa. Commw. Page 353]

Sydney Wolff (Claimant) has appealed from an order of the Unemployment Compensation Board of Review (Board) which affirmed a referee's decision finding Claimant to be self-employed and, therefore, ineligible for benefits under Section 402(h) of the Unemployment Compensation Law (Law).*fn1 The Board and referee also concluded that Claimant was liable for a fault overpayment of $617, recoupable under Section 804(a) of the Law, 43 P.S. § 874(a). We reverse in part and remand for further findings.

Claimant was employed by the University of Pittsburgh as an Associate Professor of Special

[ 79 Pa. Commw. Page 354]

Education when his contract terminated on August 31, 1980 and was not renewed by the University. Claimant subsequently returned to New York State where he had formerly resided, began looking for full-time employment and filed an interstate claim for unemployment compensation benefits. Though unable to locate full-time work, Claimant did begin consulting work in September for the Board of Cooperative Educational Services (BOCES) in Syracuse. The work, which was usually performed one day a week through the week ending December 6, 1980, involved performing teacher and program evaluations as well as parent education for parents with deaf children. Claimant received a daily fee for his services plus travel expenses. Based on the fact that Claimant, on two of his weekly claim forms, indicated that he was self-employed, the referee concluded that Claimant's consulting work disqualified him from benefits under Section 402(h). The referee further concluded that Claimant withheld material information in his original application for benefits because he did not indicate therein that he was self-employed, despite the fact that he had started his consulting work prior to the date of his application. The referee held that the benefits received by Claimant consequently represented a fault overpayment. The Board adopted the referee's fact findings and legal conclusions in full.

Although the Law does not specifically define the term "self-employment", the definition of "employment" includes the following pertinent language:

Services performed by an individual for wages shall be deemed to be employment subject to this act, unless and until it is shown to the satisfaction of the department that -- (a) such individual has been and will continue to be free

[ 79 Pa. Commw. Page 355]

    from control or direction over the performance of such services both under his contract of service and in fact; and (b) as to such services such individual is customarily engaged in an ...


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