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SILVIO D. GAETANI v. COMMONWEALTH PENNSYLVANIA (04/16/86)

decided: April 16, 1986.

SILVIO D. GAETANI, 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 Silvio D. Gaetani, No. B-234739.

COUNSEL

Alfred W. Crump, Jr., Ward and Crump, for petitioner.

Charles D. Donahue, Associate Counsel, with him, James K. Bradley, Associate Counsel, and Charles G. Hasson, Acting Deputy Chief Counsel, for respondent.

Judges Craig and Colins, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri.

Author: Barbieri

[ 96 Pa. Commw. Page 411]

Silvio Gaetani, Claimant, appeals here the order of the Unemployment Compensation Board of Review (Board) affirming the referee's decision which denied Claimant benefits pursuant to the doctrine enunciated in the Starinieri Unemployment Compensation Case, 447 Pa. 256, 289 A.2d 726 (1972) that a self-employed businessman who becomes unemployed shall not be eligible for unemployment compensation. The referee determined that the facts elicited at the hearing before

[ 96 Pa. Commw. Page 412]

    him did not place Claimant within the exception to the Starinieri rule carved out by the legislature at Section 402.4 of the Unemployment Compensation Law (Law), Act of December 5, 1936, P.L. (1937) 2897, as amended, 43 P.S. ยง 802.4 added by the Act of July 21, 1983, P.L. 68, effective January 1, 1984.

Section 402.4 of the Law provides:

(a) Notwithstanding any other provision of this act, an officer of a corporation deemed to be a self-employed person because he exercised a substantial degree of control over the corporation and who becomes unemployed due to the fact that the corporation enters into involuntary bankruptcy proceedings under the provisions of Chapter 7, Title 11 of the United States Code shall be entitled to receive unemployment compensation under this act: Provided, That the wages paid to the officer of a corporation deemed to be a self-employed person were mandatorily subject to this act.

(b) Unemployment compensation shall be paid to an officer of a corporation deemed to be a self-employed person, who is eligible under the provisions of this section, in the same manner and to the same extent as unemployment compensation paid to any other eligible claimant under the provisions of this act.

The facts in this case are not in dispute. Claimant had worked as the general manager of Gaetani Brothers, Inc., a corporation engaged in the mushroom farming business, for approximately thirty-six years, and, until May 11, 1984, had been responsible for overseeing the day to day activities of the business, hiring and firing employees, and, in general, ensuring the business's overall ...


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