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WILLIAM S. KOSCIUSZKO v. COMMONWEALTH PENNSYLVANIA (02/11/87)

decided: February 11, 1987.

WILLIAM S. KOSCIUSZKO, 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 William S. Kosciuszko, No. B-215428-B and B-215429-B.

COUNSEL

Anthony J. Kosciuszko, with him, Annette M. Hutchison, for petitioner.

Richard F. Faux, 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.

Author: Barbieri

[ 103 Pa. Commw. Page 590]

William Kosciuszko, Claimant, appeals the decisions and orders of the Unemployment Compensation Board of Review (Board) allowing unemployment compensation based on wages earned by Claimant as a driver of equipment owned by Claimant and leased to Yellow Freight System (Yellow Freight) but disallowing unemployment compensation based on remuneration received from Yellow Freight for the use of Claimant's equipment.

Claimant had filed an appeal to this Court in March, 1983 from the Board's order affirming the referee's total denial of compensation. This Court remanded the appeal to the Board for the purpose of oral argument on the issues presented in the appeal. The Board scheduled oral argument at which there were no appearances. The Board then vacated its prior orders and issued two new decisions in which it found the following facts: (1) that Claimant had been associated with Yellow Freight as a truck owner-operator since 1968; (2) that the lease agreement between Claimant and Yellow Freight is currently in effect; (3) that Claimant has the option of hiring a driver but elects to operate his own equipment; (4) that Claimant has complete responsibility for the maintenance and operation of his equipment; (5) that Claimant receives one check from Yellow Freight for the rental of his equipment and one check representing wages earned as driver of the equipment; and (6) that during the various claim weeks at issue, Claimant operated his equipment less than full-time due to a lack of work.

[ 103 Pa. Commw. Page 591]

The Board allowed Claimant benefits based on his earnings as a driver for Yellow Freight and disallowed Claimant benefits based on earnings received from the lease of his equipment to Yellow Freight pursuant to Section 402(h) of the Pennsylvania Unemployment Compensation Law*fn1 which precludes payment of unemployment compensation to a claimant for any week:

In which he is engaged in self-employment: Provided, however, That an employe who is able and available for full-time work shall be deemed not engaged in self-employment by reason of continued participation without substantial change during a period of unemployment in any activity including farming operations undertaken while customarily employed by an employer in full-time work whether or not such work is in 'employment' as defined in this act and continued subsequent to separation from such work when such activity is not engaged in as a primary source of livelihood. Net earnings received by the employe with respect to such activity shall be deemed remuneration paid or payable with respect to such period as shall be determined by rules and regulations of the department.

The Board reasoned that Claimant's capacity as lessor of tractor-trailer equipment to Yellow Freight constituted self-employment precluding Claimant's receipt of unemployment benefits based on earnings in that capacity.

Claimant argues on appeal to this Court (1) that the referee, who heard the appeal from the Office of Employment Security's ...


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