Appeal from the Order of the Unemployment Compensation Board of Review in case of In re: Claim of Gary A. Conrad, No. B-218645.
Donald M. Taylor, for petitioner.
Michael D. Alsher, Associate Counsel, with him, Richard L. Cole, Jr., Chief Counsel, for respondent.
Judges Craig, Barry and Blatt, sitting as a panel of three. Opinion by Judge Blatt.
The Unemployment Compensation Board of Review (Board) affirmed a referee's decision which found that Gary A. Conrad (claimant) had been self-employed while receiving unemployment compensation benefits and assessed a "fault overpayment" 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).
The claimant asserts that the Board erred when it concluded that his sideline business precluded him from receiving benefits and, in the alternative, he contends that, even if we were to hold that he was ineligible, the Board erred when it failed to determine whether or not Section 401(f) of the Law, 43 P.S. § 801(f)*fn1 would apply here to afford him benefits. We will address his contentions seriatim.
Pursuant to 402(h) of the Law:
An employe shall be ineligible for compensation for any week --
(h) In which he is engaged in self-employment: Provided, however, That an employe who is able and available for full-time work shall be deemed not engaged in self-employment by reason of continued participation without substantial change during a period of unemployment in any activity including farming operations undertaken while customarily employed by an employer in full-time work whether or not such work is in "employment" as defined in this act and continued subsequent to separation from such work when such activity is not engaged in as a primary source of livelihood. (Emphasis added.)
This Court held in Parente v. Unemployment Compensation Board of Review, 27 Pa. Commonwealth Ct. 455, 366 A.2d 629 (1976) that Section 402(h) of the Law, 43 P.S. § 802(h) precludes disqualification where: (1) the self-employment precedes valid separation from full-time work; (2) the self-employment continues without substantial change after separation; (3) the claimant remains available for full-time work after separation; and (4) the self-employment is not the primary source of claimant's livelihood. Furthermore, it is axiomatic that, for the above-cited proviso to apply, all four of the conditions illuminated in Parente must be met. Seidof v. Unemployment Compensation Board of Review, 49 Pa. Commonwealth Ct. 358, 410 A.2d 1322 (1980). And, of course, the ...