Isett
v. UCBR – Cmwlth. Court – March 18, 2015 – unpublished memorandum opinion
Court
held that the claimant was not self-employe and thus continued to be eligible
for UC benefits.
Claimant
got benefits after being laid off from work when he returned after a disability
leave. Both before and after his leave
and layoff, claimant has done yard work for a neighboring child care
center. Claimant was initially granted
benefits, but the employer appealed and the referee and UCBR held that his
occasional work for the child care center made him self-employed, ineligible
for benefits, and subject to a non-fault overpayment. The Court reversed.
Burden of
proof on DOLI
Where
the Bureau initiates proceedings that result in a suspension of benefits based
on self-employment, as is the case herein, it is the Bureau, and not the
putative employer, who carries the burden of proof. Silver v. UCBR, 34
A.3d 893, 896 n.7 (Pa. Cmwlth. 2011); Teets v. UCBR, 615 A.2d 987, 989
(Pa. Cmwlth. 1992). In such proceedings, where the claimant is already
receiving unemployment compensation benefits, the question is not whether the
work at issue would entitle the claimant to benefits, but whether the work at
issue disqualifies the claimant from further receipt of benefits he is
already receiving. Minelli v. UCBR, 39 A.3d 593, 598 n.7 (Pa. Cmwlth.
2012) (emphasis added).
Self-employment
Pursuant
to Section 402(h), a claimant is ineligible for unemployment benefits in any
week “[i]n which he is engaged in self-employment.” While the
term “self-employment” is not
defined in the Law, we look to Section 4(l)(2)(B) of the Law, which defines
“employment,” in pertinent part, as:
Services performed by an individual for wages shall be deemed
to be employment subject to this act, unless and until it is shown to the
satisfaction of the department that—(a) such individual has been and will
continue to be free from control or direction over the performance of such services
both under his contract of service and in fact; and (b) as to such services
such individual is customarily engaged in an independently established trade,
occupation, profession or business.
43
P.S. § 753(l)(2)(B). This court has consistently held that before a claimant
will be declared to be self-employed, both elements of section 4(l)(2)(B) must
be satisfied. Buchanan v. UCBR, 581 A.2d 1005, 1007 (Pa. Cmwlth. 1990).
Claimant not
engaged in self-employment
It
is clear that Claimant was not customarily engaged in an independently
established trade, occupation or business.
He had cut the child care center law for years as a neighbor and that he
approached them to cut the lawn in order to rehabilitate his knee. Claimant
testified: He “was kind of feeling guilty to even get paid for [his services]
but [he] was trying to get a little bit of therapy for medical problem [knee . He thought by performing the services, this
is what [the Bureau] would want . . . .Claimant did not buy any equipment, gas
or supplies, and used tools he acquired over the years from being in the
construction business when needed. Claimant testified that he never looked for
other mowing or landscaping jobs, never invested any money, did not advertise
or put out fliers, and did not try to solicit customers by word-of-mouth. He
testified: “My intention wasn’t to go into business, my intention was to get
[himself] a little bit in better physical shape and help out a little bit.” Claimant testified that he was available for
full-time employment and continued to look for work while he performed services
for Tiny Treasures and that the fact that he made an inquiry to obtain a quote
for liability insurance, in and of itself, is insufficient as a matter of law
to support the finding that he was customarily engaged in an independent trade,
occupation, profession or business. The
Court agreed.
The
evidence shows that Claimant did not advertise in any way, did not seek other
customers, did not invest any money nor purchase any equipment or supplies.
Claimant dutifully reported the sums he receive to the Bureau, consistent with
the Bureau’s own instructions in the regulations. Moreover, even where an
activity which generates a limited amount of income was not undertaken while
the claimant was still employed, such activity does not automatically make it
disqualifying self-employment. Teets v. UCBR, 615 A.2d 987, 989 (Pa.
Cmwlth. 1992). Claimant testified that the money he received for mowing was not
enough to either support himself or cover the cost of insurance, and that it
was never his intention to go into business for himself and that he continued
to look for full time employment.
The
evidence establishes only that Claimant’s work for the child care agency was on
the side to make extra money and not that of an individual customarily engaged
in a trade, occupation, profession or business. The Court has long recognized
the ability of an individual to accept occasional assignments of work. Thus,
“the fact that an unemployed person agrees to accept, and thereafter does
accept, an occasional offer of work is simply not enough to demonstrate that
said individual is customarily engaged in an independently established trade,
occupation, profession or business” that would disqualify him from receiving
unemployment benefits. Silver v. UCBR, 34 A.3d 893, 898 (Pa. Cmwlth.
2011); Minelli v. UCBR, 39 A.3d 593, 597-98 (Pa. Cmwlth. 2012).
________________
The
opinion, though not reported, may be cited "for its persuasive value, but
not as binding precedent." 210 Pa. Code 69.414.
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