Appeal from the Order of the Unemployment Compensation Board of Review, in case of In Re: Claim of Michael Kelly, No. B-241908.
Robert L. White, for petitioner.
Samuel Lewis, Associate Counsel, with him, Clifford F. Blaze, Deputy Chief Counsel, for respondent.
Judges Craig and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Palladino.
[ 107 Pa. Commw. Page 262]
Michael Kelly (Petitioner) appeals from an order of the Unemployment Compensation Board of Review (Board) which affirmed a referee's decision ordering a recoupment of benefits paid to Petitioner from August 25, 1984 to April 13, 1985, excluding the week ending March 16, 1985. We affirm.
On July 24, 1984, Petitioner became associated with DiEgidio Construction Company (DiEgidio) in order to
[ 107 Pa. Commw. Page 263]
perform routine final maintenance work on three newly constructed buildings. Upon learning of Petitioner's employment, the Office of Employment Security (OES) issued an overpayment notice to Petitioner. The notice required him to reimburse $3,770 in regular unemployment benefits and $580 in federal supplementary benefits because he withheld information that he was self-employed and therefore ineligible to receive unemployment compensation by reason of Section 402(h) of the Unemployment Compensation Law.*fn1 A hearing was held from which the referee determined that Petitioner was self-employed under Section 402(h). The Board affirmed, and this appeal followed.
Our scope of review in unemployment compensation appeals is limited to a determination of whether the Petitioner's constitutional rights have been violated, whether an error of law has been committed, or whether necessary findings of fact are supported by substantial evidence. Estate of McGovern v. State Employees' Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986).
Petitioner's sole contention is that the Board erred as a matter of law in determining that he was self-employed within the meaning of Section 402(h). Such a determination is a question of law reviewable by this court. Centorame v. Unemployment Compensation Board of Review, 82 Pa. Commonwealth Ct. 337, 474 A.2d 1220 (1984). Furthermore, this court has established a two-part conjunctive test for establishing self-employment under Section 402(h). Our first inquiry is whether Petitioner is subject to the control of the employer in regard to the work to be performed and the manner of performance; the second is whether Petitioner has a proprietary interest in some business he can
[ 107 Pa. Commw. Page 264]
operate free from the control of any other individual. Monroe G. Koggan Associates, Inc. v. Unemployment Compensation Board of Review, 80 Pa. ...