Ausburn v. Commonwealth

442 A.2d 831, 65 Pa. Commw. 413, 1982 Pa. Commw. LEXIS 1152

• Court: Commonwealth Court of Pennsylvania
• Decided: March 23, 1982
• Docket: Appeal, No. 2304 C.D. 1980
• Status: Published

Opinion

Opinion'by

President Judge Crumlish, Jr.,

Russell Ausburn appeals an Unemployment Compensation Board of Review order which held him ineligible for benefits¹ and assessed a recoupment of overpayment in the amount of $3,960.00.² We affirm.

The relevant facts are not disputed. Ausburn began receiving benefits in September of 1979. Shortly thereafter, he organized and chartered a corporation to operate a tavern, serving as its president and being its sole shareholder. He continued to receive benefits, failing to notify the Office of Employment Security of this venture.

[T]he law of this Commonwealth has been that the positive act of establishing an independent business enterprise renders ineligible the principals involved for unemployment compensation benefits because they are self-employed persons.

Roberts v. Unemployment Compensation Board of Review, 55 Pa. Commonwealth Ct. 52, 54, 422 A.2d 911, 912 (1980). This Court, in Roberts, further rejected the claimant’s argument that he continued to qualify because the business had not yet begun to generate income. Ausburn here raises the same argument and, again, we hold it is without merit.

Affirmed.

Order

The order of the Unemployment Compensation Board of Review, No. B-187437, Dated September 3, 1980, is affirmed.

Judge Palladino did not participate in the decision in this case.

1 Section 402(h) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(h).

2 Section 804(b) of the Law, 43 P.S. §874(b).