Opinion
Argued November 15, 1979
February 19, 1980.
Unemployment compensation — Self-employment — Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897 — Substantial change in self-employment activity.
1. A person engaged in self-employment is ineligible for benefits under the Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897, unless such activity predated his separation from full-time work, continues without substantial change after separation and is not the primary source of the person's livelihood and unless such person remains available for full-time work. [359-60]
2. Evidence that a person operating a feed business outside his regular employment, expanded his participation in such business after the termination of his regular employment realizing an increase in profits from such business when his participation therein increased, supports a determination that this self-employment substantially changed after such termination, precluding his receipt of unemployment compensation benefits. [360]
Argued November 15, 1979, before Judges WILKINSON, JR., BLATT and MacPHAIL, sitting as a panel of three.
Appeal, No. 2155 C.D. 1978, from the Order of the Unemployment Compensation Board of Review in case of In Re: Richard G. Seidof, No. B-163115.
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.
Ronald J. Mishkin, with him, Mark S. Love, of Mervine, Brown and Newman, P.C., for petitioner.
Elsa D. Newman, Assistant Attorney General, with her, Richard Wagner, Chief Counsel, and Edward G. Biester, Jr., Attorney General, for respondent.
The Unemployment Compensation Board of Review (Board) affirmed a referee's decision that Richard G. Seidof (claimant) was ineligible to receive benefits because he was self-employed as specified by Section 402(h) of the Unemployment Compensation Law (Law) which provides that:
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P. S. § 802(h).
An employe shall be ineligible for compensation for any week —
. . . .
(h) In which he is engaged in self-employment: Provided, however, That an employe 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 such 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.
This provision precludes disqualification, however, if all of the following conditions are satisfied: (1) the self-employment activity precedes a valid separation from full-time work; (2) it continues without substantial change after separation; (3) the claimant remains available for full-time work after separation; and (4) 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).
It is uncontroverted that the claimant here has met conditions (1), (3) and (4) set out above. The sole issue raised on appeal, therefore, is whether or not the Board correctly found that the nature of the claimant's self-employment was substantially changed after his separation from the Flory Milling Company (Company).
The claimant testified that, prior to his last day of his work at the Flory Milling Company, he had established a feed business in which he personally participated only to a minor degree. Subsequently, however, he expanded the general area and type of this business, and testified that he then spent more time at the store. His financial statement in the record shows an increase in profits beginning at the time his services with the Company were terminated.
We believe that the findings of fact made by the referee and adopted by the Board are based on substantial evidence that the claimant's self-employment did not continue without substantial change after separation from his other employment.
The order of the Board is therefore affirmed.
ORDER
AND NOW, this 19th day of February, 1980, the order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby affirmed.
This decision was reached prior to the death of President Judge BOWMAN.
Judge DiSALLE did not participate in the decision in this case.