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THEODORE S. MELNYCHUK v. COMMONWEALTH PENNSYLVANIA (01/15/87)

decided: January 15, 1987.

THEODORE S. MELNYCHUK, 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 Theodore S. Melnychuk, No. B-242780.

COUNSEL

Theodore S. Melnychuk, petitioner, for himself.

Jonathan Zorach, Assistant Counsel, with him, Clifford F. Blaze, Deputy Chief Counsel, for respondent.

President Judge Crumlish, Jr., and Senior Judges Barbieri and Kalish, sitting as a panel of three. Opinion by Senior Judge Kalish.

Author: Kalish

[ 103 Pa. Commw. Page 201]

Theodore S. Melnychuk (claimant) petitions for review of an order of the Unemployment Compensation Board of Review (Board) which affirmed a referee's order denying him benefits. We affirm.

The referee found that claimant was not entitled to these benefits because he was "self-employed" and therefore ineligible under section 402(h) of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(h). That section provides that an employee shall be ineligible for compensation for any week in which he is engaged in self-employment. However, where the self-employment activity preceded the separation from full-time work and continued without substantial change after separation, and claimant remains available for full-time work and the self-employment activity is not the primary source of claimant's livelihood, claimant is not self-employed

[ 103 Pa. Commw. Page 202]

    within the meaning of the Law and is entitled to benefits. Parente v. Unemployment Compensation Board of Review, 27 Pa. Commonwealth Ct. 455, 366 A.2d 629 (1976).

In the instant case, the Office of Employment Security (OES) conducted an investigation and denied benefits on the basis that claimant was self-employed. On appeal, the referee found that claimant was employed on a full-time basis as a lawyer with the public defender's office. Simultaneously, he maintained his own private law practice, spending thirty-eight or forty hours a week in this activity, with a gross income for the year 1984 of $17,525. The referee further found that after separation, claimant continued this activity and "did substantially increase his hours of participation in the operation of the business." Claimant made such business his primary source of livelihood, and was actively seeking clients. Thus, the referee denied benefits, and the Board affirmed.

Because it was the OES which conducted the investigation and alleged claimant's self-employment, it carried the burden of proof. Roche v. Unemployment Compensation Board of Review, 94 Pa. Commonwealth Ct. 546, 503 A.2d 1103 (1986). This Court's scope of review is to determine whether constitutional rights were violated, whether an error of law was committed, or whether the necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704. This court may examine the record to determine if the evidence presented supports the conclusion that claimant was self-employed. Conclusions as to claimant's self-employment present a question of law subject to review by this Court. Roche.

The referee found that prior to his separation, claimant spent thirty-eight to forty ...


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