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MICHAEL J. COLELLO v. COMMONWEALTH PENNSYLVANIA (05/20/85)

decided: May 20, 1985.

MICHAEL J. COLELLO, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeal from the Order of the Unemployment Compensation Board of Review in the case of Michael J. Colello, No. B-216919.

COUNSEL

Thomas W. Kuster, Cusick, Madden, Joyce and McKay, for petitioner.

Charles G. Hasson, Acting Deputy Chief Counsel, with him, Michael D. Alsher, Associate Counsel, for respondent.

President Judge Crumlish, Jr. and Judges Craig, MacPhail, Doyle, Barry, Colins and Palladino. Opinion by Judge Craig.

Author: Craig

[ 89 Pa. Commw. Page 355]

Michael J. Colello (claimant) petitions for review of the order of the Unemployment Compensation Board of Review (board) affirming a referee's decision and order, which invalidated his Application for Benefits, dated December 20, 1981, (AB), under the provisions of Sections 401(c) and 4(w)(1) of the Unemployment Compensation Law (Act).*fn1 The board found him to be ineligible for the benefits which he had received for the weeks ending December 26, 1981, through January 30, 1982; March 13, 1982, through May 29, 1982; June 12, 1982, through June 26, 1982; and August 7, 1982, through October 2, 1982, under Section 401(c) and also found him in receipt of a fault overpayment for such weeks in the amount of $5490.00 under Section 804(a)*fn2 of the Act.

The claimant had filed his AB after a qualifying separation from his full-time employer, Sharon Steel Corporation, on December 18, 1981. At some earlier time claimant had acquired a fifty percent ownership

[ 89 Pa. Commw. Page 356]

    interest in a business known as the Royal Cafe (cafe). The remaining fifty percent is owned by another individual with whom claimant is a partner. Despite his ownership interest, claimant takes no active role in the operation of the cafe which is operated by a manager, the father of claimant's partner. As the referee specifically found, claimant is "in effect an absentee owner who only visits the cafe occasionally to socialize."

Acting on an anonymous tip received sometime after October 2, 1982, the Office of Employment Security (OES) conducted an investigation which revealed claimant's relationship to the cafe. In reviewing claimant's AB forms, OES discovered that he had not listed his ownership interest when he filed his AB*fn3 and that, when he filed mail claims for some of the weeks at issue, his response to several questions concerning possible self-employment was that he was not self-employed.*fn4 OES then determined that claimant had falsely filed his AB and his weekly claims and that, consequently, he had received benefits, through his fault, to which he was not entitled.*fn5

[ 89 Pa. Commw. Page 357]

In stating the question involved in his brief, claimant asserts only that the record herein lacks substantial evidence to support the finding that he deliberately concealed self-employment so as to render his AB invalid. Of course, in so framing the issue, claimant has omitted reference to the denial of his weekly claims for benefits and the overpayment issue; however, inasmuch as we believe that the unreferenced issues are necessarily ...


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