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AUGUST JORDAN v. COMMONWEALTH PENNSYLVANIA (09/13/88)

decided: September 13, 1988.

AUGUST JORDAN, 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 August Jordan, No. B-247701.

COUNSEL

Lorraine M. Bittner, Neighborhood Legal Services Association, for petitioner.

Peter C. Layman, Deputy Chief Counsel, with him, Clifford F. Blaze, Deputy Chief Counsel, for respondent.

Judges Barry and Smith, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Barry.

Author: Barry

[ 119 Pa. Commw. Page 376]

August Jordan (claimant) appeals from an order of the Unemployment Compensation Board of Review (Board) which affirmed the referee's denial of unemployment compensation benefits but amended the grounds

[ 119 Pa. Commw. Page 377]

    for that denial from subsection (h) of Section 402 of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. Session, P.L. (1937), as amended, 43 P.S. ยง 802, to subsection (e) of Section 402 of the Law.

Claimant was last employed as a cleaner and prepper for Electro-Kote Co. (employer) which was in the business of refinishing office furniture and kitchen cabinets. His last day of work was September 9, 1985. In March of 1985, while working for the employer, claimant together with his son, purchased machinery to perform jobs in his spare time involving the refinishing of office furniture and kitchen cabinets for others. He received five such jobs between March of 1985 and September 9, 1985. His employment was terminated on September 10, 1985 because his employer viewed his side-line business as being in direct competition with its business. After September 9, 1985 and until the date of the referee's hearing on November 1, 1985, claimant obtained no additional refinishing jobs.

After being discharged, claimant applied for unemployment compensation benefits with the Office of Employment Security (OES). The OES, however, determined that claimant was ineligible for benefits under both Sections 402(e) (willful misconduct) and 402(h) (self employment) of the Law. Claimant filed a timely appeal. Following a hearing, a referee issued a decision finding claimant eligible under Section 402(e), but ineligible under 402(h). Claimant filed an appeal with the Board in which he indicated that he was appealing the referee's denial of benefits under Section 402(h) but was not appealing the referee's decision that he was not ineligible for benefits under Section 402(e). The Board, however, by its decision, found that, while claimant was not ineligible for benefits under Section 402(h), he was

[ 119 Pa. Commw. Page 378]

    ineligible for benefits under Section 402(e). This appeal followed.

Our scope of review in this matter is limited to a determination of whether constitutional rights have been violated, an error of law has been committed, or whether necessary findings of fact are not supported by substantial evidence. Estate of McGovern v. State Employees' Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986). Claimant argues here that the Board did not have jurisdiction to address the issue of whether he was ineligible for benefits under Section ...


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