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THOMAS G. ROCHE v. COMMONWEALTH PENNSYLVANIA (01/31/86)

decided: January 31, 1986.

THOMAS G. ROCHE, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Thomas G. Roche, No. B-232573.

COUNSEL

Robert J. Borthwick, for petitioner.

Jonathan Zorach, Associate Counsel, with him, Charles G. Hasson, Acting Deputy Chief Counsel, for respondent.

Judges MacPhail and Colins, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 94 Pa. Commw. Page 547]

Thomas G. Roche (Claimant) appeals from an order of the Unemployment Compensation Board of Review (Board) which affirmed a referee's order denying benefits and ordering a fault recoupment under Section 804(a) of the Unemployment Compensation Law (Law).*fn1 We affirm the Board.

The referee found that Claimant was ineligible for the benefits he received for each compensable week ending June 5, 1982 through December 18, 1982 and January 15, 1983 through February 19, 1983. Claimant received a total of $6,930.00 in benefits during those weeks. The referee found that Claimant was not entitled to these benefits because on May 28, 1982, he became involved with Consulting Sales Analysts, Inc. and that Claimant's involvement with the company was such that he was "self-employed" and ineligible for benefits under Section 402(h) of the Law.*fn2

[ 94 Pa. Commw. Page 548]

Normally, the employer has the burden of proving that Claimant was self-employed. See DeBolt Transfer, Inc. v. Unemployment Compensation Board of Review, 58 Pa. Commonwealth Ct. 246, 427 A.2d 744 (1981). In the case at bar, it was the Office of Employment Security (OES), acting on an anonymous tip, which was asserting Claimant's self-employment. In such a case, the OES carries the burden of proof.*fn3 Where, as in this case, the party with the burden of proof has prevailed before the Board, this Court's scope of review is to determine whether an error of law has been committed or whether necessary findings of fact are unsupported by substantial evidence. Watson v. Unemployment Compensation Board of Review, 88 Pa. Commonwealth Ct. 566, 491 A.2d 293 (1985). Conclusions as to Claimant's self-employment present a question of law subject to review by this Court. Centorame v. Unemployment Compensation Board of Review, 82 Pa. Commonwealth Ct. 337, 474 A.2d 1220 (1984). As such, this Court may examine the record to determine if the evidence presented supports the conclusion that Claimant was self-employed.

It is undisputed that Consulting Sales Analysts was not incorporated until December 10, 1982 and that claimant became 50% stockholder on December 30, 1982. Claimant also served as president of the corporation.

[ 94 Pa. Commw. Page 549]

Claimant does not appeal the determination that he was self-employed for the period between January 15, 1983 and February 19, 1983. He avers, however, that his activities involving Consulting Sales Analysts between June 5, 1982 through December 18, 1982 do not constitute self-employment.

Claimant admits that on May 28, 1982, a checking account in his name and that of John T. Borthwick entitled "Consulting Sales Analysts" was created with the statements being sent to Claimant's house. Money was paid out of this account to Claimant's wife for services rendered and to Claimant for the purchase of personal property by Consulting Sales Analysts and to reimburse him for expenses incurred in running errands for Consulting Sales Analysts. Claimant's name, along with that of Borthwick, appeared on a lease ...


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