Opinion
November 17, 1967
Appeal by claimants Charles W. Farr and Harry E. Farr, who are father and son and during some of the periods here involved were officers of the corporate employer, from a decision of the Unemployment Insurance Appeal Board which, among other things, disqualified each of the claimants from benefits on the ground that he was not totally unemployed. The employer conducted a seasonal blacktop paving business. The board (by adoption of the Referee's findings) determined: "After the active season, the son made no effort to find other employment, but instead stayed at home, waiting for calls from prospective customers. An advertisement was inserted in the local newspaper and in various other ways the son promoted the interest of the business. At the same time the father went to Florida to seek other work and afterwards returned to the corporate business when the active season began in the spring." The last sentence is the only finding with respect to the supposed continued employment or activity of claimant Charles W. Farr in the corporate enterprise during the slack season and it is, of course, completely silent as to what activities he pursued in connection with it; and, indeed, the finding seems to be that he was away from it and "returned" to it only "when the active season began in the spring." This claim must, therefore, be remitted for adequate findings or other appropriate proceedings. By notice of determination dated November 23, 1965, claimant Harry Farr was ruled ineligible for benefits previously allowed for periods commencing January 15, 1965 and February 9, 1965, on the ground that he was not totally unemployed, in that he worked for the employer on certain days "by going to Rochester, New York, to look at a mixer and to Syracuse to look for a motor and was reimbursed $10 each time." Claimant asserts that these were mere "errands" incidental to his personal trips and that the "reimbursement" of "expenses" did not constitute the payment of wages or remuneration; but although the board was entitled perhaps to evaluate the transactions otherwise, and we find no basis upon which we might disturb the factual determination of employment on these days, the board did not pass upon, or make any finding with respect to the nature of claimant's representations, as made either willfully or mistakenly but in good faith, and thus the decision does not support the forfeiture of claimant's right to further benefits by 48 effective days. By initial determination dated January 10, 1966, effective April 7, 1965, which was the date of the incorporation of the employer, claimant Harry Farr was ruled ineligible because of lack of total unemployment, being, on the contrary, engaged as "an active officer of [the employer] which is a going corporation". The hereinbefore quoted findings of the board affirming this determination are valid, being supported by substantial evidence. By the same determination, subsequently affirmed by the board, willful misrepresentation on each of six reporting days was found, predicated on claimant's failure to disclose his connection with the employer as an officer and stockholder; an overpayment of $275 was held recoverable; and claimant's rights to further benefits were reduced by 24 effective days. Claimant denies any element of willfulness but the board considered that by reason of his having previously completed a particular form upon which the question was asked, he knew of the requirement of such disclosure. Among the Referee's findings adopted by the board were these: "I have no doubt that claimants in this case organized the corporate entity as a means of qualifying for benefits, and it therefore follows as a matter of course that they deliberately concealed their connections with the corporation to prevent their disqualification. They had an obligation to speak, but remained silent, and the forfeiture for wilful misrepresentation should not be disturbed." Again, the board's findings have support in substantial evidence and cannot be disturbed by us. With respect to this determination, however, the Referee at a January 13, 1966 hearing directed the deletion from the notice of determination of two reporting dates prior to claimant's election as an officer; but neither the Referee's decision nor that of the board gave effect to that direction and the case must be remitted for appropriate reconsideration of the board decision as respects those dates. Decision reversed, with costs to appellants, and cases remitted for further proceedings in accordance with this memorandum decision. Gibson, P.J., Herlihy, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Gibson, P.J.