Opinion
March 21, 1963.
April 18, 1963.
Unemployment Compensation — Self-employment — Activities on behalf of proposed new business — Absence of remuneration — Evidence — Findings of fact — Appellate review — Unemployment Compensation Law.
1. In an unemployment compensation case, in which it appeared that during the claim weeks in question claimant, in accordance with an agreement made with another, was engaged in performing various activities in connection with the development of a business in which he and the other were to be associated, it was Held that the evidence sustained the finding of the board that claimant was self-employed and thereby disqualified from receiving unemployment compensation benefits under § 402(h) of the Unemployment Compensation Law.
2. In such case, claimant's contention, that during part of the time he had endeavored to secure other employment at other stores, was Held to be without merit, where it appeared that this was consistent with his original understanding with his associate that if he could find employment elsewhere which would pay him better he might take it, and that in fact he did not find such other employment and continued to perform activities on behalf of the new business; and the mere fact that claimant did not draw any salary when he first started his activities until after the claim weeks in question was immaterial.
3. Findings of fact by the board, supported by credible evidence, are binding on appeal.
Before RHODES, P.J., ERVIN, WRIGHT, WOODSIDE, WATKINS, MONTGOMERY, and FLOOD, JJ.
Appeal, No. 7, Oct. T., 1963, by claimant, from decision of Unemployment Compensation Board of Review, No. B-73424, in re claim of Aaron Salis. Decision affirmed; reargument refused May 15, 1963.
Joseph Litt, with him Markovitz Stern, for appellant.
Sydney Reuben, Assistant Attorney General, with him Walter E. Alessandroni, Attorney General, for Unemployment Compensation Board of Review, appellee.
Argued March 21, 1963.
In this unemployment compensation case the bureau, the referee and the board all determined that appellant was self-employed and thereby disqualified from receiving unemployment compensation benefits under § 402(h) of the Unemployment Compensation Law, 43 P. S. § 802 (h).
On July 16, 1961 appellant filed an application for benefits for compensable weeks ending July 29 through November 4, 1961. At the remand hearing held April 11, 1962, Joseph Litt, Esq., an attorney representing the claimant, stated: "The claimant's contention is that from July 22, 1961 until the middle of September he was not self employed. However, we are willing to concede that from September 15th which is the date that the business actually went into operation, the store was open for business from that point on, he was self employed."
We are, therefore, actually concerned only with the period from July 22, 1961 to September 15, 1961.
Section 402(h) of the Unemployment Compensation Law, as now amended, provides as follows: "An employe shall be ineligible for compensation for any week — . . . (h) In which he is engaged in self-employment: . . . ."
In Alick Unemployment Compensation Case, 194 Pa. Super. 28, 166 A.2d 342, where the appellant offered his services as an air conditioner serviceman subsequent to separation from full-time employment, this Court, in affirming the Board's denial of benefits under § 402(h), stated: "Claimant having embarked upon self-employment subsequent to the separation from his full-time work is disqualified under section 402(h) of the Law. The record is clear that claimant was not engaged in self-employment during his full-time work but embarked upon his self-employment subsequent to his separation from his full-time employment at Anchor Sanitary Company.
"The purpose of the Unemployment Compensation Law is to benefit those who become unemployed through no fault of their own. Persons who are not so unemployed should not receive benefits from the fund. Those who are engaged in business for themselves must be considered to have removed themselves from the class of unemployed, now subject to the limitation under section 402(h)." See also DePriest Unemployment Compensation Case, 196 Pa. Super. 612, 177 A.2d 20; Roccograndi Unemployment Compensation Case, 197 Pa. Super. 372, 178 A.2d 786; DiGregorio Unemployment Compensation Case, 197 Pa. Super. 562, 179 A.2d 665; and Hyman Unemployment Compensation Case, 199 Pa. Super. 532, 185 A.2d 821.
The board made the following findings of fact: "1. On July 21, 1961 claimant entered into an agreement with Anthony Santucci to operate a clothing store near Burlington, New Jersey.
"2. On August 15, 1961, they opened a checking account for the business with the Bank of Levittown, New Jersey which required that all checks were to carry the signature of both Anthony Santucci as President and the claimant as Vice President.
"3. On or about August 15, 1961, claimant made contacts with various suppliers concerning the purchase of stock for the enterprise.
"4. On October 13, 1961 a corporation under the name of A A Custom Tailors, Inc. was chartered in New Jersey in which Anthony Santucci was constituted as President and owner of 50% of the stock; Mrs. Anthony Santucci as Secretary and owner of 1% of the stock, and the claimant as Vice President and owner of 49% of the stock.
"5. The claimant was in complete charge of the store which opened for evening hours only on September 15, 1961 and on a full time basis on October 15, 1961.
"6. During the claim weeks at issue, claimant was engaged in performing all the necessary steps pursuant to his and his associate's plans for self-employment."
There was credible evidence to support the above findings of fact and they are binding upon us: Progress Mfg. Co. v. Unemployment Compensation Board of Review, 406 Pa. 163, 176 A.2d 632. The claimant himself testified that his activities on behalf of the business started on or about August 15, 1961. He also admitted that he took complete charge of the store's operation and that Santucci didn't know anything about the business. His principal argument now is based upon the fact that during part of this time he had endeavored to secure other employment as a clothing salesman at other stores. This, however, was consistent with his original understanding with Santucci that if he could find employment elsewhere which would pay him better, he might take it. The fact is, however, that he did not find such other employment and that he continued to operate and manage the A A Custom Tailors, Inc. store and actually started to draw $100.00 a week for so doing from November 15, 1961.
Santucci and his son also devoted some time to the business but agreed not to draw anything therefrom until the business was built up. The mere fact that claimant did not actually draw any salary when he started his activities on July 21, 1961 is immaterial. See Dawkins Unemployment Compensation Case, 358 Pa. 224, 56 A.2d 254; Muchant Unemployment Compensation Case, 175 Pa. Super. 85, 103 A.2d 438; Walley Unemployment Compensation Case, 184 Pa. Super. 456, 136 A.2d 136; Gheder Unemployment Compensation Case, 186 Pa. Super. 493, 142 A.2d 355; Wax Unemployment Compensation Case, 189 Pa. Super. 196, 149 A.2d 191; Urban Unemployment Compensation Case, 189 Pa. Super. 503, 151 A.2d 655; Meckes Unemployment Compensation Case, 190 Pa. Super. 578, 155 A.2d 463.
Decision affirmed.