           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Ralph Pileggi, III,                             :
                      Petitioner                :
                                                :
               v.                               :
                                                :
Unemployment Compensation                       :
Board of Review,                                :   Nos. 507, 508 & 509 C.D. 2018
                 Respondent                     :   Submitted: November 9, 2018



BEFORE:        HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE PATRICIA A. McCULLOUGH, Judge
               HONORABLE CHRISTINE FIZZANO CANNON, Judge


OPINION
BY JUDGE FIZZANO CANNON                             FILED: June 12, 2019


               Ralph Pileggi, III (Claimant) petitions pro se for review from three
March 8, 2018 orders of the Unemployment Compensation Board of Review
(Board),1 which affirmed the decisions of an Unemployment Compensation referee
(Referee) concluding that Claimant was ineligible for unemployment compensation
benefits because he was self-employed pursuant to Section 402(h) of the



       1
        Claimant challenges three Board orders in this matter. First, at docket No. 507 C.D. 2018,
Claimant challenges Board decision No. B-602179, which affirmed the Unemployment
Compensation referee’s (Referee) decision at Appeal No. 17-09-D-2765. Second, at docket No.
508 C.D. 2018, Claimant challenges Board decision No. B-602180, which affirmed the Referee’s
decision at Appeal No. B-17-09-D-2766. Lastly, at docket No. 509 C.D. 2018, Claimant
challenges Board decision No. B-602181, which affirmed the Referee’s decision at Appeal No. B-
17-09-D-2767. Because these matters involve the same claimant, record, and legal issues, this
Court consolidated these three matters by order dated June 7, 2018.
Unemployment Compensation Law (Law)2 and concluding Claimant was liable for
fault overpayments. Upon review, we reverse.
               Claimant, a contractor, worked for QCI Excavating (Employer). At
various times over the years, while not working for Employer during the off-season
or periods of bad weather, Claimant applied for and received unemployment
compensation (UC) benefits. At issue in the instant matter are UC benefits totaling
$13,005.00 that Claimant applied for and received during multiple periods from
February 2014 through February 2017 (the UC benefits periods).3 During the UC
benefits periods, Claimant received income from a 50% stake in Prime Property
Group, LP (PPG), a real estate endeavor located in State College, Pennsylvania, that
Claimant has owned with his brother since 2002. Upon learning of Claimant’s
earnings from his interest in PPG, the Department of Labor and Industry
(Department) began an investigation into Claimant’s previously received UC
benefits claims. On August 14, 2017, the Department issued determinations that
denied benefits and established fault overpayments4 for the benefits Claimant
received during the UC benefits periods.



       2
        Section 402(h) of the Law provides that “[a]n employe shall be ineligible for
compensation for any week-- . . . [i]n which he is engaged in self-employment. …” Act of
December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(h).
       3
         Specifically at issue are UC benefits Claimant received for: (1) the weeks ending February
22, 2014, June 14, 2014 through July 5, 2014, November 29, 2014, and January 17, 2015, which
totaled $3,997.00; (2) the weeks ending February 7, 2015 through February 21, 2015, June 13,
2015, August 15, 2015 through August 29, 2015, and November 21, 2015 through December 12,
2015, which totaled $6,193.00; and (3) the weeks ending August 6, 2016, August 20, 2016, January
7, 2017, January 28, 2017, and February 22, 2017, which totaled $2,815.00.
       4
         Section 804 of the Law, 43 P.S. § 874(a), requires the repayment of UC benefits claimants
received, but to which they were not entitled.

                                                2
             On August 25, 2017, Claimant appealed the Department’s
determinations. On September 28, 2017, the Referee mailed Claimant a notice of a
hearing to be held on his appeals on October 13, 2017. Claimant did not attend the
October 13, 2017 hearing, and the Referee conducted the hearing on that date in
Claimant’s absence. On October 27, 2017, the Referee issued three decisions/orders
that denied Claimant benefits under Section 402(h) of the Law and ordered Claimant
to repay aggregate fault overpayments of $13,005.00.
             On     November      4,   2017,    Claimant    appealed     the   Referee’s
decisions/orders to the Board. On March 8, 2018, the Board issued orders that
adopted the Referee’s findings and conclusions and affirmed the Referee’s
decisions/orders. On March 22, 2018, Claimant appealed to this Court.5
             Claimant’s eligibility for UC benefits hinges on the determination of
his status as “self-employed” under Section 402(h) of the Law. Claimant alleges
that the Board erred in determining that he was ineligible to receive UC benefits
because he was self-employed for the purposes of Section 402(h) of the Law. See
Claimant’s Brief at 27-35. Claimant contends that, because the income he derives
from his ownership interest in PPG yields passive income, he did not need to report
the income and it should not affect his UC benefits. Id. Claimant effectively alleges
that the Department proffered insufficient evidence to meet its burden of establishing




      5
          This Court’s scope of review in this matter is limited to determining whether
constitutional rights were violated, whether an error of law was committed and whether the
findings of fact are supported by substantial evidence. Baer v. Unemployment Comp. Bd. of
Review, 739 A.2d 216, 217 (Pa. Cmwlth. 1999) (citing Kirkwood v. Unemployment Comp. Bd. of
Review, 525 A.2d 841 (Pa. Cmwlth. 1987)).

                                            3
that he was self-employed and that the Board committed an error of law by affirming
the Referee’s decisions/orders. Id. We agree.6
               “The Unemployment Compensation Law was enacted to protect
workers who have suffered a loss in income due to separation from employment
through no fault of their own.” Pres. Pa. v. Unemployment Comp. Bd. of Review,
673 A.2d 1044, 1046 (Pa. Cmwlth. 1996); see Section 3 of the Law, 43 P.S. § 752.
However, “a self-employed person is ineligible for benefits under Section 402(h) of
the Law[.]” Glen Mills Sch. v. Unemployment Comp. Bd. of Review, 665 A.2d 561,
565 (Pa. Cmwlth. 1995); see also 43 P.S. § 802(h) (providing that a UC claimant
will be ineligible for benefits in any week in which he is self-employed). “Normally
the employer has the burden of proving that a claimant is self-employed, but where
the bureau acts on its own in suspending benefits because of self-employment, the
bureau carries the burden.” Teets v. Unemployment Comp. Bd. of Review, 615 A.2d
987, 989 (Pa. Cmwlth. 1992). “The issue of whether a UC claimant is self-employed
is a question of law subject to plenary review.” Frimet v. Unemployment Comp. Bd.
of Review, 78 A.3d 21, 25 (Pa. Cmwlth. 2013); see also Baer v. Unemployment
Comp. Bd. of Review, 739 A.2d 216, 217 (Pa. Cmwlth. 1999).
               Section 4(l)(1) of the Law generally defines the term “employment” to
encompass “all personal service performed for remuneration by an individual under
any contract of hire, express or implied, written or oral, including service in interstate
commerce, and service as an officer of a corporation.” 43 P.S. § 753(l)(1). The Law
does not statutorily define the narrower term of “self-employment,” however. Thus,

       6
         We acknowledge the Board’s argument that Claimant has waived his argument regarding
the Referee’s determination that he was self-employed by not specifically challenging any findings
on appeal. See Board’s Brief at 19-23. Here, however, Claimant is asserting a lack of findings to
support the Board’s decision, creating an insufficiency in the decision. See Claimant’s Brief at 7.

                                                4
in determining whether an individual is self-employed, courts look to the statutory
definition of “employment” in Section 4(l)(2)(B) of the Law, which provides, in
pertinent part:

             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) (emphasis provided). This Court has explained:

             This language has been adapted by the courts into a two-
             prong test to determine “self-employment,” so that a
             claimant can be classified as self-employed under the Law
             once it is established that he is not subject to the outside
             control of an employer, and that he is customarily engaged
             in an independent trade.         The Supreme Court of
             Pennsylvania has stated that the definitive question is
             whether the claimant himself exercises a “substantial
             degree of control” over the business. Thus, courts
             generally require some degree of participation in the
             business as a director, officer or manager, with respect to
             the first prong of the test, and either a significant
             ownership interest or a substantial investment of capital
             with respect to the second.

Watson v. Unemployment Comp. Bd. of Review, 491 A.2d 293, 295–96 (Pa. Cmwlth.
1985) (internal citations and some quotations omitted) (emphasis provided). The
Court has further explained that:



                                          5
             Although this Court has stated repeatedly that both
             elements must be proven, in practical application, a more
             or less cumulative fact test has developed, so that a
             deficiency of facts proving the first element may be
             balanced by a surplus in favor of the second, and vice
             versa.

Id. at 296 (emphasis in original).
             Here, because Claimant was absent at the hearing, the evidence
presented consisted only of testimony from the Department representative and
supporting documentary evidence illustrating that Claimant owned a 50% stake in
PPG and derived income from his interest in PPG during the claimed UC benefits
periods. See Notes of Testimony (N.T.) 10/13/2017 at 4-5. The Referee found the
Department representative’s testimony to be credible. See Referee’s Decisions at 2.
Based on the evidence, the Referee’s Decisions each made the following Findings
of Fact:

             1. On January 23, 2014, the [C]laimant filed an application
             for UC benefits effective January 19, 2014.

             2. In 2002, the [C]laimant started the business entitled
             Prime Property [Group] LP.

             3. The [C]laimant owns 50% of Prime Property LP.

             4. Prime Property LP rents property to college students in
             State College Pennsylvania.

             5. The [C]laimant received more remuneration from Prime
             Property LP than his regular employment.




                                         6
              6. For the weeks ending[7] . . . , the [C]laimant received
              benefits to which he was not entitled.

              7. The [C]laimant did not advise the [D]epartment of his
              business.

Referee’s Decisions at 1-2. Each Referee’s Decision then found as follows:

              In the present case, the agency representative credibly
              testified that the [C]laimant admitted that he owned 50%
              of [PPG], and that the [C]laimant provided several years
              of tax returns, which showed that the [C]laimant earned
              more from his real estate business than from his regular
              earnings. The sideline exemption for self-employment
              cannot be granted when [C]laimant’s primary earnings are
              from his own business. Benefits must be denied under
              [S]ection 402(h) [of] the Pennsylvania unemployment
              compensation law.

Referee’s Decisions at 2.8 Thus, the Referee concluded that Claimant was ineligible
to receive UC benefits because the sideline activity exception for self-employment
did not apply, as Claimant’s earnings from PPG, being the greatest of his income
streams, represented the primary source of his livelihood. See Referee’s Decisions
at 2.
              In each case, without determining whether Claimant’s ownership
interest in PPG represented self-employment, the Referee proceeded directly to an
analysis of whether Claimant’s income received from his ownership interest in PPG


        7
         Each of the Referee’s Decisions herein insert the UC periods specific to the individual
Referee’s Decision.
        8
        Decisions No. B-602179 and B-602180 contain the precise language quoted herein.
Decision No. B-602181 contains identical language, but abbreviates “the Pennsylvania
unemployment compensation law” to “the PA UC Law.”

                                               7
qualified for the sideline business exception. However, prior to engaging in this
analysis, the Referee made no findings of fact upon which he could have based the
legal conclusion that Claimant’s ownership interest in PPG represented self-
employment in the first place. This was legal error.
            Our plenary review of the record reveals that, while it is
incontrovertible that Claimant owns a 50% interest in PPG, no evidence of record
exists that Claimant either provided PPG with services of any kind or controlled the
company to any degree. Further, the evidence does not indicate that Claimant
received wages or remuneration in exchange for any services he provided to PPG.
Instead, the evidence illustrates that Claimant effectively received dividends on an
investment he made in PPG nearly two decades ago in 2002. Indeed, Claimant’s
Schedule E forms submitted annually with his 1040 characterize his Schedule K-1
income as “passive.” See Claimant’s Federal Tax Returns for 2014-2016, Exhibits
S15-S22 to October 13, 2017 hearing. We further note that PPG is a residential real
estate rental company and thus a “passive activity” by definition under the Internal
Revenue Code. See 26 U.S.C. § 469 (c)(1) & (2) (defining “passive activity” as an
activity involving the conduct of a trade or business in which the taxpayer does not
materially participate, and expressly including any rental activity within the
definition). Under these circumstances, Claimant’s interest in PPG was not self-
employment as required by the two-prong test articulated in Watson, or even
employment as defined by Section 4 of the Law. The evidence instead merely
indicates that Claimant was an investor in his brother’s business. As previously
stated, the purpose of the Law is to compensate individuals who lose their job
through no fault of their own. 43 P.S. § 752. No argument exists that Claimant was
at fault for his unemployment with Employer during the UC benefits periods.


                                         8
              We appreciate that in Vuknic v. Unemployment Compensation Board of
Review, 405 A.2d 1030 (Pa. Cmwlth. 1979), this Court found an individual who
owned a one-third stake in a corporation but who did not actively participate in the
operation of the business was self-employed for unemployment compensation
purposes. Vuknic is distinguishable from the instant matter, however. In Vuknic,
the Court determined a prima facie showing of self-employment had been made
where the individual’s one-third ownership stake was coupled with reasonable
inferences regarding his ability to control the corporation based on the corporation’s
recent history of events.9 Vuknic, 405 A.2d at 1031-32. Here, no such inferences of
corporate control can be derived from the evidence Department presented at the
hearing, which does not illustrate that Claimant had any involvement whatsoever in
PPG’s operation, and illustrated that his participation consisted only of an initial
investment to start the business, which is now, and has for years been, completely
and independently run by Claimant’s brother.                See N.T. 10/13/2017 at 4-5
(Department agent testimony indicating Claimant is 50% owner of PPG and is not
otherwise involved in the running of the business). The Referee’s relevant findings
state only that Claimant started the business in 2002 and that he owns 50% of PPG;
there are no findings that Claimant participated in the business during the relevant
time periods at issue. In other words, Claimant’s involvement in PPG is simply that
of an investor.
              As such, the instant matter presents the scenario of an employee seeking
UC benefits, occasioned by a downturn of work at his employer, who
contemporaneously receives dividends from an ownership interest in a separate
       9
          The stockholder, who had previously disengaged himself from control of the company,
later regained control of the business when it suffered under his sons’ management. Vuknic, 405
A.2d at 1031.

                                              9
company in which he has invested, but the management and operation of which he
takes no part. Effectively, Claimant invested in his brother’s company as one would
invest in the stock market. The evidence at the hearing revealed that Claimant’s
ownership interest is an investment that works exactly as would any investment in a
stock portfolio: Claimant does nothing and receives income (akin to dividends), on
which he pays taxes, based on the company’s annual performance. See N.T.
10/13/2017 at 4-5. Comparably, a stock investor provides no personal services for
wages or remuneration and thus is not employed by the companies in which the
investor holds stock. See Colello v. Unemployment Comp. Bd. of Review, 492 A.2d
769, 772 (Pa. Cmwlth. 1985) (noting that an ownership interest in a business where
no work is performed is “analogous to the ownership of income producing property
such as a leased parcel of land or interest producing certificates of deposit with a
financial institution[,]” the income from which is not reportable work-related income
to support the denial of benefits). The performance of his stock portfolio, therefore,
does not affect the investor’s eligibility to receive UC benefits when laid off from
his regular employer through no fault of his own. See id. The same is true of
Claimant’s interest in the company run by his brother: Claimant is an investor with
no operational responsibility or input. Like the stockholder, Claimant should not
lose his UC benefits eligibility when laid off from his employer during a period of
downtime beyond Claimant’s control based on the performance of his investment.
             Claimant’s ability to collect unemployment benefits should not be
affected by making what turned out to be a prudent investment in his brother’s
business as opposed to investing in a publicly traded corporation. Such a result
would not be consistent with the purpose of the Law, which the General Assembly
enacted specifically to help individuals who, like Claimant, have lost their


                                         10
employment through no fault of their own. See 43 P.S. § 752. Therefore, we
conclude that Claimant’s investment in PPG did not represent disqualifying self-
employment under Section 402(h) of the Law.10 Further, because we find that
Claimant was not ineligible to receive UC benefits, the payments he received cannot
be categorized as fault overpayments. Therefore, Claimant is not subject to any fault
overpayment repayments ordered by the Board pursuant to Section 804 of the Law,
43 P.S. § 874.
               For the foregoing reasons, we reverse the Board’s March 8, 2018 orders
affirming the Referee’s decisions/orders concluding that Claimant was ineligible for
UC benefits and requiring repayment of aggregate fault overpayments.




                                             __________________________________
                                             CHRISTINE FIZZANO CANNON, Judge




       10
         Given our determination that Claimant was not self-employed by virtue of his investment
in PPG, we need not examine whether the sideline activity exception applies to the instant matter.

                                               11
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Ralph Pileggi, III,                    :
                      Petitioner       :
                                       :
             v.                        :
                                       :
Unemployment Compensation              :
Board of Review,                       :   Nos. 507, 508 & 509 C.D. 2018
                 Respondent            :


                                   ORDER


             AND NOW, this 12th day of June, 2019, the March 8, 2018 Orders of
the Unemployment Compensation Board of Review are REVERSED.




                                      __________________________________
                                      CHRISTINE FIZZANO CANNON, Judge
