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FRANK DUBY v. COMMONWEALTH PENNSYLVANIA (09/10/85)

decided: September 10, 1985.

FRANK DUBY, 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 In Re: Claim of Frank Duby, Nos. B-214283 and B-214284.

COUNSEL

John J. Regule, Regule & Regule, for petitioner.

James K. Bradley, 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 Barry. Judge Williams, Jr., did not participate in the decision in this case.

Author: Barry

[ 91 Pa. Commw. Page 526]

This appeal results from an order of the Unemployment Compensation Board of Review (Board) which modified a referee's decision and held that while claimant Frank Duby was ineligible for benefits, the overpayments he had received were only subject to recoupment under the non-fault provisions of Section 804(b) of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 874(b) (Supp. 1965-83).

Claimant was laid off by the Westinghouse Electric Corporation (Westinghouse) in October of 1981. Claimant, who had been employed at Westinghouse since 1966, was also the sole owner of Duby Pest Control and had been so since 1974. During 1981, claimant operated his business at a loss of almost $3,500.00. When claimant filed his application for benefits, he stated he was not self-employed. Claimant eventually collected $5,100 in regular benefits and $510.00 in extended benefits before the compensation authorities discovered appellant's business activities.

[ 91 Pa. Commw. Page 527]

Following an investigation, the Office of Employment Security (OES) determined that claimant had been ineligible for benefits and ordered him to repay the monies received pursuant to the fault overpayment provisions of Section 804(a) of the Law. Claimant appealed to a referee and a hearing was held. Claimant testified that he did no work save paperwork for the pest control business, as he hired one person who worked approximately forty hours a month. As the business had been losing money since 1980, claimant did not report the self-employment activity, believing he was not required to do so as he had no earnings therefrom. The referee specifically found that "[d]espite his status as the owner of Duby Pest Control, the claimant is available for full-time employment." (Finding of Fact No. 10, Referee's Decision, Nov. 19, 1982.) Accordingly, the referee reasoned that claimant would not have been ineligible for benefits under Section 402(h) of the Law which relates to self-employment. Nonetheless, the referee held that claimant had filed an invalid application for benefits under Section 401(c) of the Law, which provides:

Compensation shall be payable to any employe who is or becomes unemployed, and who --

(c) Has made a valid application for benefits with respect to the benefit year for which compensation is claimed and has made a claim for compensation in the proper manner and on the form prescribed by the department.

43 P.S. § 801. The referee, therefore, affirmed the determination of the OES.

On appeal by claimant, the Board, without taking additional testimony, made the ...


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