Summary
In Lynn v. Unemployment Compensation Board of Review, 40 Pa. Commw. 75, 396 A.2d 500 (1979) we held that an applicant who knowingly stated in his application for benefits that he was unemployed, when such a statement was in fact false, was liable for a fault overpayment.
Summary of this case from Braunstein v. Commonwealth, Unemployment Compensation Board of ReviewOpinion
Argued December 4, 1978
January 23, 1979.
Unemployment compensation — Self-employment — Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897 — Fault overpayment — Failure to report earnings.
1. A salesman who sets his own hours, has an unrestricted territory, develops his own leads and is free from the control or direction of any other individual is properly found to be self-employed and ineligible for benefits under the Unemployment Compensation Law. Act 1936, December 5, P.L. (1937) 2897. [77]
2. An applicant deliberately stating in an application for unemployment compensation that he was unemployed and receiving no earnings when such facts were untrue supports a finding of fault overpayment when benefits are paid as a result of such statements, for which overpayments the recipient is liable. [77-8]
Judge CRUMLISH, JR. concurred in the result only.
Argued December 4, 1978, before Judges CRUMLISH, JR., BLATT and CRAIG, sitting as a panel of three.
Appeal, No. 1080 C.D. 1977, from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Thomas H. Lynn, No. B-143642.
Application to the Bureau of Employment Security for unemployment compensation benefits. Benefits denied. Fault overpayment liability established. Applicant appealed to the Unemployment Compensation Board of Review. Decision affirmed. Applicant appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Bernard J. Meyer, for petitioner.
Michael Klein, Assistant Attorney General, with him Gerald Gornish, Acting Attorney General, for respondent.
Thomas H. Lynn (appellant) appeals here from an order by the Unemployment Compensation Board of Review which affirmed a referee's decision that he was a self-employed salesman and was therefore ineligible to receive benefits under Section 402(h) of the Unemployment Compensation Law (Act). The Board also held that he had intentionally given incorrect information regarding his employment status and wages in order to receive benefits and was consequently liable for a fault overpayment in the amount of $5,453.00 under Section 804(a) of the Act, 43 P. S. § 874(a).
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P. S. § 802(h).
The appellant argues that he did not improperly receive benefits because he was not self-employed, and that he cannot be held to be self-employed because there was no determination that he was "customarily engaged in an independent trade." He also argues that he did not give incorrect information to obtain benefits.
The findings of fact are supported by substantial evidence and indicate clearly that the appellant set his own working hours, was not restricted to a geographical territory, developed his own leads and operated free from the control and direction of any other individual. We believe that this adequately establishes self-employment. O'Brien v. Unemployment Compensation Board of Review, 29 Pa. Commw. 272, 370 A.2d 805 (1977); Unemployment Compensation Board of Review v. Kessler, 27 Pa. Commw. 1, 365 A.2d 459 (1976); American Diversified Corp. v. Bureau of Employment Security, 1 Pa. Commw. 527, 275 A.2d 423 (1971). With regard to the determination of a "fault overpayment," we believe that the appellant did improperly mislead the Bureau. He testified that he did not report his sales commissions because he was under the impression that he was allowed to make 40% of his gross income and still be eligible for benefits. The referee presumably found the testimony to be either incredible or unpersuasive. The appellant appears to have been advised throughout the period when he was applying for benefits that he should inform the Bureau of any earnings and he uniformly stated that he was not employed and had not received any earnings. We believe therefore that his acts could be interpreted as being designed improperly and intentionally to mislead the Bureau, and this establishes as a matter of law a fault overpayment. Rozanc v. Unemployment Compensation Board of Review, 27 Pa. Commw. 369, 366 A.2d 611 (1976).
We therefore affirm the order of the Board.
Judge CRUMLISH, JR. concurs in the result only.
ORDER
AND NOW, this 23rd day of January, 1979, the order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby affirmed.