Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of William S. Watson, No. B-219379.
George S. Test, Jr., Baird, Miller & Test, for petitioner.
Michael D. Alsher, Associate Counsel, with him, Charles G. Hasson, Acting Deputy Chief Counsel, for respondent.
Judges MacPhail, Doyle and Barry, sitting as a panel of three. Opinion by Judge Doyle. Judge Williams, Jr. did not participate in the decision in this case.
[ 88 Pa. Commw. Page 567]
This is an appeal from an order of the Unemployment Compensation Board of Review (Board) which affirmed a referee's determination that William S. Watson (Claimant) was ineligible for benefits due to self-employment and, in addition, that he had received a fault overpayment in the amount of $1,937.00.
Although the findings of the referee are quite limited, there is no dispute between the parties with respect to the basic facts involved in this case. Claimant was employed for several years as a dragline oiler for James M. Stott Coal Company (Stott Coal). In September of 1982 he was laid off due to lack of work. Several months prior to the layoff, in January of 1982, Claimant and his wife had entered into a limited partnership agreement with Claimant's father-in-law and several other members of Claimant's wife's family. Pursuant to this agreement, Claimant and his wife agreed to lend the partnership, Scott Bailey Construction Company (Scott Bailey), the amount of $6,000.00,
[ 88 Pa. Commw. Page 568]
repayable on demand, in exchange for interest and an equal share of the annual profit or loss of the partnership. The partnership consisted of five general partners, all of whom were members of Claimant's father-in-law's immediate family, and two limited partners, Claimant and his wife.
Prior to his separation from Stott Coal, Claimant performed no services for Scott Bailey. However in September and October of 1982, he began to visit Scott Bailey's job site on an almost daily basis, for a few hours at a time. Although he was primarily an observer, he would occasionally lend a hand with the manual labor. His name was listed on the payroll as a partner, ostensibly at the request of the Pennsylvania Department of Transportation, for whom Scott Bailey was performing services at the time; however, at no time did he receive any wages or salary.
Claimant began to receive unemployment compensation benefits as of September 5, 1982. On November 22, 1982, pursuant to information received in an anonymous telephone call, the Office of Employment Security (OES) notified Claimant of a possible overpayment. A hearing was held before a referee on December 29, 1982, following which the referee determined that Claimant "by his monetary investment into the partnership and his active participation in the business must be considered self-employed within the meaning of [Section 402(h) of the Unemployment Compensation Law (Law)]*fn1 and therefore is ineligible
[ 88 Pa. Commw. Page 569]
to receive unemployment compensation benefits." Findings of fact were made that Claimant performed "services" for Scott Bailey, that his name appeared on the payroll as a partner on five payroll records submitted to the Department of Transportation during September and October, ...