Appeal from the Order of the Unemployment Compensation Board of Review, in case of In re: Claim of Craig Dongilli, No. B-216123.
Richard R. Victoria, Caruso and Victoria, for petitioner.
Charles G. Hasson, Acting Deputy Chief Counsel, for respondent.
Judges MacPhail, Barry and Colins, sitting as a panel of three. Opinion by Judge Colins.
[ 86 Pa. Commw. Page 285]
Craig Dongilli (claimant) appeals a decision of the Unemployment Compensation Board of Review (Board), which affirmed a referee's decision denying benefits. The denial of compensation was predicated upon claimant's self-employment as specified by Section 402(h) of the Unemployment Compensation Law (Law).*fn1
Claimant had been employed by Consolidation Coal Company as a coal miner for approximately ten years until being laid off on September 30, 1982. On April 26, 1982 he had purchased a bar/restaurant known as the "River Road Inn". While being employed full time by Consolidation Coal Company, claimant also worked at his bar four to five hours a day, Monday through Friday, and eight to ten hours on Saturday plus additional hours on Sunday.
Since his layoff, claimant has been spending eight to ten hours per day working in the bar, thereby doubling the time dedicated to his former part-time self-employment. In addition, he continues to work
[ 86 Pa. Commw. Page 286]
Saturdays and Sundays as he did when he was a coal miner.
It is axiomatic that our scope of review is limited to a determination of whether there is substantial evidence in the record to support the fact-findings or whether an error of law has been committed. Neff v. Unemployment Compensation Board of Review, 47 Pa. Commonwealth Ct. 296, 407 A.2d 936 (1979).
Section 402(h) of the Law, 43 P.S. § 802(h), provides in relevant part:
An employee shall be ineligible for compensation for any week 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 . . . 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 ...