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JESS D. LAFOLLETTE v. COMMONWEALTH PENNSYLVANIA (10/29/86)

decided: October 29, 1986.

JESS D. LAFOLLETTE, 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 Jess D. LaFollette, No. B-224563.

COUNSEL

George S. Gobel, Liddle and Adams, for petitioner.

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

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

Author: Barbieri

[ 101 Pa. Commw. Page 589]

Jess D. LaFollette, Claimant, appeals here an order of the Unemployment Compensation Board of Review (Board). That order affirmed a referee's decision which found him ineligible for unemployment compensation benefits under Sections 401(c) and 402(h) of the Pennsylvania Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §§ 801(c) and 802(h), and that he received a fault overpayment in the amount of $3,762 subject to recoupment under Section 804(a) of the Law, 43 P.S. § 874(a). We reverse.

The pertinent facts are as follows. Claimant was laid off from his job as a quality control inspector with the United States Steel Corporation on October 15, 1982 and was granted benefits in the amount of $198 per week. In early 1983, the Bureau of Unemployment Compensation, Benefits and Allowances, received an anonymous tip on its Harrisburg Hot Line that Claimant had been engaged in self-employment during the same period of time in which he had collected unemployment compensation benefits. As a result of the investigation which ensued following receipt of the Hot Line tip, the Office of Employment Security (OES), on July 25, 1983, issued a determination that Claimant was ineligible for benefits for the sixteen weeks he had already received and had received a fault overpayment in the amount of $3,762 which was subject to recoupment. Claimant appealed the OES determination to a referee who held a hearing on August 24, 1983. The referee issued her decision on October 3, 1983 in which she affirmed

[ 101 Pa. Commw. Page 590]

    the OES determination that Claimant was ineligible for the sixteen weeks of benefits which he had received and had received a fault overpayment. He then appealed the referee's decision to the Board which affirmed the referee on November 25, 1983 and this appeal followed.

In this appeal, Claimant contends that (1) there is not substantial evidentiary support in the record for the Board's findings; (2) the Board erred as a matter of law when it characterized his activity of installing heating devices as "self-employment" rather than as a "side-line activity" which would have made him eligible for benefits; and (3) the Board erred when it found him ineligible for benefits due to his failure to produce certain documents requested by the OES. In reviewing these contentions, we are cognizant that under our limited scope of review we must affirm the Board unless necessary findings are unsupported by substantial evidence, an error of law committed by the Board, or if any of the Claimant's constitutional rights were violated. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704; Saxton v. Unemployment Compensation Board of Review, 71 Pa. Commonwealth Ct. 636, 455 A.2d 765 (1983).

We shall first examine Claimant's contention that necessary findings of the Board lack support by substantial, competent evidence in the record. Specifically, he challenges the evidentiary support for the following findings of the referee which were adopted by the Board:

3. Since January of 1982, the claimant has been engaged in self-employment activities ...


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