Appeal from the Order of the Unemployment Compensation Board of Review in the case of In Re: Claim of Maurice Gelb, No. B-224693.
David I. Davis, Law Offices of Jonathan DeYoung, for petitioner.
Michael D. Alsher, Associate Counsel, with him, Charles G. Hasson, Acting Deputy Chief Counsel, for respondent.
Judges Craig, Palladino and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Craig.
Where an unemployment compensation claimant, by virtue of his ownership of 50% of a business corporation's stock and his office as president of that corporation, possesses the power to control the corporation, but has in fact not exercised such control, is he ineligible for compensation on the ground that his engagement with the corporation constituted self-employment?
The claimant, Maurice Gelb, has appealed from an affirmance, by the Unemployment Compensation Board of Review, of a referee's decision which denied benefits on the above-stated grounds, citing Starinieri Unemployment Compensation Case, 447 Pa. 256, 289 A.2d 726 (1972).*fn1
The referee's findings are supported by substantial evidence. Indeed, the record contains no evidence to contradict the findings that the claimant founded Gelb Productions, Inc., together with his son and daughter-in-law, to promote boxing matches at Atlantic City casinos; that the claimant owned 50% of the stock and was the corporate president while his son and daughter-in-law owned the other 50% and
occupied the other corporate offices; and that the claimant became unemployed when the son decided to move the corporation from Philadelphia to Ventnor, New Jersey, and the claimant did not wish to commute.
Contrary to the claimant's contention that the referee ignored evidence that the claimant made no executive decisions in the running of the business, but merely sold advertising, handled mail and made routine arrangements, we note that the referee did find that the claimant did not exercise executive powers with respect to policy decisions, financial matters and hiring and firing.
However, as a matter of law relating to this Pennsylvania business corporation, the referee was on solid legal ground when he found that the claimant possessed nevertheless an equal right to make policy decisions, to be involved in financial matters and to hire and fire employees. Under the Business Corporation Law, Act of May 5, 1933, P.L. 364, as amended, 15 P.S. §§ 1501-1516, the claimant's fifty-percent shareholder position meant that no one could proceed free of his views as to actions by directors or even as to the composition of the board of directors. Under section 406 of the same law, 15 P.S. § 1406, his management powers as president were also rooted in his shareholder's power to control or forestall directors' actions.
The claimant stresses a statement in the leading case, Starinieri, where the Pennsylvania Supreme Court described a self-employed businessman as "one who through ownership of stock and his position in the corporation exercises a 'substantial degree of control' over its operation. . . ." 44 Pa. at 259, 289 A.2d at 727 (emphasis ...