Appeal from the Orders of the Unemployment Compensation Board of Review in the case of In Re: Claim of Calvin G. Hanley, Nos. B-219246, B-219247 and B-219248.
Michael F. Flannery, Cottom, Hoffert & Gring, for petitioner.
James K. Bradley, Associate Counsel, with him, Charles G. Hasson, Acting Deputy Chief Counsel, for respondent.
President Judge Crumlish, Jr. and Judges Rogers, Craig, MacPhail, Doyle, Colins and Palladino. Opinion by Judge Palladino. Judge MacPhail dissents.
[ 96 Pa. Commw. Page 106]
Calvin G. Hanley (Claimant) appeals from three orders of the Unemployment Compensation Board of Review (Board) which disallowed the payment of benefits to Claimant, pursuant to Section 401(c) of the Unemployment Compensation Law*fn1 (Law), and which required the recoupment of benefits already paid to Claimant, according to the provisions of Section 804(a) of the Law.*fn2 We reverse.
Claimant was last employed by Eisenhower Imports as a salesman, until his last day of work in August of 1981. After being separated from his employment under conditions which were not disqualifying, Claimant filed an application for benefits with an effective date of August 16, 1981. Thereafter, Claimant received benefits from the week ending August 22, 1981 until March 13, 1982; he received extended benefits from the week ending March 20, 1982 until May 15, 1982; and he received additional extended benefits from the week ending September 25, 1982 until February 19, 1983.
In the latter part of 1982, the Office of Employment Security (OES) received anonymous information that Claimant was operating a convenience store known as Miller's Mini Mart. Upon investigation, it was learned that, on February 28, 1981, Claimant had filed an employer's
[ 96 Pa. Commw. Page 107]
initial statement with the Field Accounting Service of OES in which he indicated that he was the sole owner of Miller's Mini Mart. As the owner of this business, Claimant filed quarterly reports for unemployment compensation and paid unemployment tax.
Claimant purchased the store on December 9, 1980, and the business and all licenses are in his name. Claimant did not report the business when making his application for benefits, however, because he didn't believe he was "really doing anything." The store was operating at a loss, Claimant was not taking any wage or salary, Claimant's wife and children did most of the work, and Claimant had not increased his activity at the store after his separation from employment with Eisenhower Imports. Presently, Claimant spends four to five hours per week working for the store by helping to close up in the evening, making deposits, and keeping the books.
OES disallowed the payment of benefits to Claimant on the grounds that he was self-employed, under the provisions of Section 402(h) of the Law,*fn3 and that he had failed to comply with the reporting requirements of Section 401(c). OES also determined that Claimant was in receipt of a fault overpayment, which was subject to recoupment pursuant to Section 804(a).
After an unemployment compensation hearing, the referee determined that Claimant was not ineligible for benefits under Section 402(h), because Claimant's work in behalf of his business was merely a sideline activity which did not meet the prerequisites for "self-employment" as specified in that section. Because Claimant did not report his ownership of the store when ...