Wednesday, April 14, 2010

UC - self-employment - sideline activity

Lamoreaux v. UCBR - April 14, 2010 - unpublished memorandum decision

Claimant was found ineligible under 43 P.S. § 802(h), the sideline business exception, under which: "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 including farming operations 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."

The court has found claimants engaged in self-employment eligible for benefits, if: 1) the self-employment began prior to the termination of the employe's full-time employment; 2) the self-employment continued without substantial change after the termination; 3) the employe remained available for full-time employment; and 4) the self-employment was not the primary source of the employe's livelihood. O’Hara v. UCBR, 648 A.2d 1311 (Pa. Cmwlth. 1994); see LaChance v. UCBR, 987 A.2d 167 (Pa. Cmwlth. 2009). The claimant has the burden of proving all the elements of this exception. O’Hara, 648 A.2d 1311.

Claimant was held to have failed to satisfy the 4th element, that the self-employment was not the primary source of her livelihood. She did not provide "adequate financial information to compare income from self-employment with income from other employment..." Parente v. UCBR, 366 A.2d 629 (Pa. Cmwlth. 1976). In this case, the Board correctly concluded that there was not adequate information to determine her primary source of income because there was no evidence of her self-employment earnings for the second half of 2008. In addition, her testimony as to her earnings was found not to be credible. By not providing documentary evidence of her earnings, claimant failed to meet her burden to prove that her self-employment was not the primary source of her livelihood, and therefore the Board was correct to deny benefits.