Summary
In Higgins v. Unemployment Compensation Board of Review, 45 Pa.Cmwlth. 509, 405 A.2d 1024 (1979), we held that a substantial change occurred where the claimant worked 10 hours every third weekend prior to termination and 40 to 45 hours per week after termination.
Summary of this case from Risse v. Unemployment Comp. Bd. of ReviewOpinion
Argued May 10, 1979
September 7, 1979.
Unemployment compensation — Self-employment — Substantial change in self-employment activity — Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897.
1. A person who is self-employed in an activity for ten hours every three weeks as a side-line to his regular employment is ineligible for benefits under the Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897, when separated from his regular employment when his self-employment activity substantially changes after such separation and he works in such activity eight to nine hours on each of five days per week. [510-11]
Argued May 10, 1979, before Judges CRUMLISH, JR., MENCER and CRAIG, sitting as a panel of three.
Appeal, No. 826 C.D. 1978, from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Gerald C. Higgins, No. B-154627.
Application to the Bureau of Employment Security for unemployment compensation benefits. Application denied. Applicant appealed to the Unemployment Compensation Board of Review. Denial affirmed. Applicant appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Thomas G. Wagner, for petitioner.
GuruJodha Singh Khalsa, Assistant Attorney General, with him Susan Shinkman, Assistant Attorney General, and Gerald Gornish, Attorney General, for respondent.
The Unemployment Compensation Board of Review affirmed the referee's decision that claimant Gerald C. Higgins was ineligible to receive benefits because he was self-employed, as specified by Section 402(h) of the Unemployment Compensation Law (Law), 43 P. S. § 802(h). We affirm the board.
Act of December 5, 1936, Second Ex. Sess., P.L. 2897, as amended.
Section 402 (h) provides that:
An employee shall be ineligible for compensation for any week —
. . . .
(h) In which he is engaged in self-employment: Provided, however, That an employee 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 . . . undertaken while customarily employed by an employer in full time work whether or not said 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.
The proviso of Section 402(h) precludes disqualification under the following conditions: (1) that the self-employment activity precedes valid separation from full-time work; (2) that it continues without substantial change after separation; (3) that the claimant remains available for full time work after separation; and (4) that the self-employment activity is not the primary source of the claimant's livelihood. Parente v. Unemployment Compensation Board of Review, 27 Pa. Commw. 455, 366 A.2d 629 (1976).
The sole issue claimant raises on appeal is whether the Board correctly found that the nature of his self-employment substantially changed after his separation from the Target Corporation.
The findings of fact, as adopted by the Board, are supported by substantial evidence. Claimant testified that, in 1974, he had become a 28% owner in a partnership known as the Factory Outlet, where he worked approximately ten hours every third week, while employed by Target Corporation, his last employer. His employment with Target ended November 15, 1977.
This case is controlled by our ruling in Parente, supra, where we held that the sideline activity has substantially changed if the claimant devotes more time to it after the layoff than before.
The referee's finding that, after claimant's separation from full-time employment, he began working eight to nine hours on each of five days per week in the Factory Outlet business, supports the Board's determination that claimant's participation in his business had substantially changed; therefore, claimant did not fall within the qualifying proviso of Section 402 (h).
Accordingly, we will dismiss the appeal and affirm the board.
ORDER
AND NOW, this 7th day of September, 1979, it is ordered that the appeal of Gerald C. Higgins be dismissed and that the decision of the Unemployment Compensation Board of Review be affirmed.