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GREGORY P. ORTMAN v. COMMONWEALTH PENNSYLVANIA (05/11/87)

decided: May 11, 1987.

GREGORY P. ORTMAN, 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 Gregory P. Ortman, No. B-239698.

COUNSEL

Robert I. Boose, II, Fike, Cascio & Boose, for petitioner.

Samuel H. Lewis, 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

[ 106 Pa. Commw. Page 67]

In this unemployment compensation case, we are called upon to determine whether the Claimant, Gregory P. Ortman, is a professional athlete within the meaning of Section 402.2 of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, added by Section 5 of the Act of July 6, 1977, P.L. 41, 43 P.S. § 802.2, so as to render him ineligible for unemployment compensation benefits during his off-season.

Claimant was last employed as a golf professional by the Somerset Country Club. His contract with the country club was on an annual basis and his last day of

[ 106 Pa. Commw. Page 68]

    work for 1984 was October 31, 1984. Claimant signed a contract for 1985 with the country club on January 10, 1985. Under the terms of his contract, Claimant was active with the country club from April 1st through October 31st of each year the contract was in effect. Claimant had contracts with this particular country club since 1982. During the period from November through March, when he is not required to be "active" with the country club, Claimant travels to Florida where he attends professional seminars, golf-related business schools, merchandise shows, and participates in golf tournaments. Claimant has three sponsors who pay his entry fees for the tournaments and in return receive three-quarters of the purses should Claimant win any.

After his active season with the country club ended on October 31, 1984, Claimant applied for benefits with the Office of Employment Security (OES). The OES determined that he was ineligible for benefits by virtue of Section 402.2 of the Law. Upon appeal, a referee affirmed the OES determination and held the Claimant ineligible for benefits. On further appeal, the Unemployment Compensation Board of Review (Board) affirmed.

[ 106 Pa. Commw. Page 69]

In this appeal, Claimant contends that: (1) the Board erred when it found that he was a "professional athlete" within the meaning of Section 402.2 of the Law; and (2) that the Board erred as a matter of law when it applied Section 402.2 of the Law to his circumstances to deny his application for benefits. We shall discuss these issues in the order stated, ever mindful that under our limited scope of review under Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704, of a Board decision, we must affirm the Board unless necessary findings are unsupported by substantial evidence, an error of law committed, or a constitutional right of the Claimant violated. Saxton v. Unemployment Compensation Page 69} Board of Review, 71 Pa. Commonwealth Ct. 636, 455 A.2d 765 (1983).

Claimant's first contention is that the Board erred in classifying him as a "professional athlete." While he concedes that he is a "golf professional," he disputes the Board's characterization of him as a "professional golfer." We initially note that the General Assembly has not defined the term "professional athlete" as used in 43 P.S. § 802.2. Therefore, under Section 1903 of the Statutory Construction Act of 1972, 1 Pa. C.S. § 1903, the term must be construed according to its common and approved usage. Fraternal Order of Police v. Pennsylvania Labor Relations Board, 71 Pa. Commonwealth Ct. 316, 454 A.2d 686 (1983), aff'd, 502 Pa. 541, 467 A.2d 323 (1983). We have previously defined the term "profession" as the "occupation, if not purely commercial, mechanical, agricultural, or the like, to which one devotes oneself; a calling in which one professes to have acquired some special knowledge used by way either of instructing, guiding, or advising others." Reich v. City of Reading, 3 Pa. Commonwealth Ct. 511, 518, 284 A.2d 315, 319 (1971). An "athlete" is one who is trained or skilled in exercises, sports, or games requiring physical strength, agility, or ...


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