Johnson v. UN. COMP. BD. OF REV.

Commonwealth Court of Pennsylvania

Johnson v. UN. COMP. BD. OF REV.

504 A.2d 989, 95 Pa. Commw. 183, 1986 Pa. Commw. LEXIS 1924

CourtCommonwealth Court of Pennsylvania

DecidedFebruary 19, 1986

DocketAppeal, 968 C.D. 1984

StatusPublished

Cited by45 cases

This text of 504 A.2d 989 (Johnson v. UN. COMP. BD. OF REV.) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Johnson v. UN. COMP. BD. OF REV., 504 A.2d 989, 95 Pa. Commw. 183, 1986 Pa. Commw. LEXIS 1924 (Pa. Ct. App. 1986).

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Opinions

Opinion by

Judge Rogers,

This is the appeal of Charles H. Johnson (claimant) from an order of the Unemployment Compensation Board of Review (board) upholding a referee’s decision denying the claimant benefits because he was [185]*185engaged in self-employment,¹ and establishing a fault overpayment.²

The referee made the following findings of fact:

1. For purposes of this appeal, the claimant was last employed by Stop and Go Food Store as a manager at a weekly salary of $340, and he last worked in August 1982.

2. A license to operate a public eating and' drinking place known as the Junction House Cafe was issued to the claimant and Larry Mikesell, and the claimant signed the license on November 10, 1982.

3. Mr. Larry Mikesell is employed elsewhere, and the claimant was in charge of the day to day operations of the business.

4. The claimant signed all payroll checks, paid utilities, rent, made bank deposits, issued checks for the lottery license, purchased supplies, paid for equipment repairs, and paid the wage tax on employees.

5. The claimant exercised a substantial degree of control over the business.

6. The payroll records do not indicate any payment to the claimant for services rendered.

[186]*1867. The claimant was self-employed during the period at issue.

8. The claimant received benefits improperly as a iesult of his failure to disclose that • he was self-employed.

The claimant asserts that he was not self-employed during the period in question. Evidence was received at the referee’s hearing to the effect that the claimant was named a permittee on the municipal license given for the operation of the Junction House; that the claimant had authority and did pay the bills on business checks; that the claimant signed all payroll checks; that' claimant made all bank deposits; that claimant used his own personal accounts in connection with the cafe; and that claimant purchased supplies. The claimant agreed at the hearing that he spent a lot of time at .the cafe during the time he was receiving unemployment compensation. This evidence supports ■ the findings made and the conclusions reached by the referee.

The claimant contends that because there was evidence in the form of his testimony and that of one Larry Mikesell, a full-time teacher, to the effect that Mikesell owned the cafe and that the claimant received no salary for much of the time he was concerned with the enterprise that a decision should have been made in his favor. But the law is that the findings of the referee which are affirmed by the board are binding on this court when supported by substantial evidence, although there is record -evidence to the contrary. Martin v. Unemployment Compensation Board of Review, 36 Pa. Commonwealth Ct. 304, 387 A.2d 998 (1978). It does not follow from the presence of conflicting evidence that the findings of fact are not supported by substantial evidence. Geesey v. Unemployment Compensation Board of Review, 33 Pa. Commonwealth Ct. 376, 381 A.2d 1343 (1978).

[187]*187The fact that, as he asserts, the claimant received no payment in the form of salary and that the payroll records of .the enterprise support this contention do not compel >a contrary result. We have held that one may be self-employed although unremunerated. Morelli v. Unemployment Compensation Board of Review, 62 Pa. Commonwealth Ct. 66, 434 A.2d 1332 (1981).

Order affirmed.

Order

And Now, this 19th day of February, 1986, the order of the Unemployment Compensation Board of Review in the above-captioned matter is 'affirmed.

■Senior Judge Kalish concurs in the result only.

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Opinion by

Judge Rogers,

This is the appeal of Charles H. Johnson (claimant) from an order of the Unemployment Compensation Board of Review (board) upholding a referee’s decision denying the claimant benefits because he was [185]*185engaged in self-employment,¹ and establishing a fault overpayment.²

The referee made the following findings of fact:

1. For purposes of this appeal, the claimant was last employed by Stop and Go Food Store as a manager at a weekly salary of $340, and he last worked in August 1982.

2. A license to operate a public eating and' drinking place known as the Junction House Cafe was issued to the claimant and Larry Mikesell, and the claimant signed the license on November 10, 1982.

3. Mr. Larry Mikesell is employed elsewhere, and the claimant was in charge of the day to day operations of the business.

4. The claimant signed all payroll checks, paid utilities, rent, made bank deposits, issued checks for the lottery license, purchased supplies, paid for equipment repairs, and paid the wage tax on employees.

5. The claimant exercised a substantial degree of control over the business.

6. The payroll records do not indicate any payment to the claimant for services rendered.

[186]*1867. The claimant was self-employed during the period at issue.

8. The claimant received benefits improperly as a iesult of his failure to disclose that • he was self-employed.

The claimant asserts that he was not self-employed during the period in question. Evidence was received at the referee’s hearing to the effect that the claimant was named a permittee on the municipal license given for the operation of the Junction House; that the claimant had authority and did pay the bills on business checks; that the claimant signed all payroll checks; that' claimant made all bank deposits; that claimant used his own personal accounts in connection with the cafe; and that claimant purchased supplies. The claimant agreed at the hearing that he spent a lot of time at .the cafe during the time he was receiving unemployment compensation. This evidence supports ■ the findings made and the conclusions reached by the referee.

The claimant contends that because there was evidence in the form of his testimony and that of one Larry Mikesell, a full-time teacher, to the effect that Mikesell owned the cafe and that the claimant received no salary for much of the time he was concerned with the enterprise that a decision should have been made in his favor. But the law is that the findings of the referee which are affirmed by the board are binding on this court when supported by substantial evidence, although there is record -evidence to the contrary. Martin v. Unemployment Compensation Board of Review, 36 Pa. Commonwealth Ct. 304, 387 A.2d 998 (1978). It does not follow from the presence of conflicting evidence that the findings of fact are not supported by substantial evidence. Geesey v. Unemployment Compensation Board of Review, 33 Pa. Commonwealth Ct. 376, 381 A.2d 1343 (1978).

[187]*187The fact that, as he asserts, the claimant received no payment in the form of salary and that the payroll records of .the enterprise support this contention do not compel >a contrary result. We have held that one may be self-employed although unremunerated. Morelli v. Unemployment Compensation Board of Review, 62 Pa. Commonwealth Ct. 66, 434 A.2d 1332 (1981).

Order affirmed.

Order

And Now, this 19th day of February, 1986, the order of the Unemployment Compensation Board of Review in the above-captioned matter is 'affirmed.

■Senior Judge Kalish concurs in the result only.

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504 A.2d 989, 95 Pa. Commw. 183, 1986 Pa. Commw. LEXIS 1924, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-un-comp-bd-of-rev-pacommwct-1986.

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