Risse v. Unemployment Compensation Board of Review
35 A.3d 79
Pa. Commw. Ct.
2012
Check Treatment

*1 Board, PERA-U-09-465-E, Relations No. impose discipline, not custody, do inmates, is reversed. searches or perform handcuff “shake-downs,” quell disruptions fights, or inmates, escaped responsible

are that allow guard man stations

and do not egress prison. from the While

access or inmates, like a

they work release supervise who has a work release

private employer to insure that main-

employee, they do so RISSE, William R. Petitioner Moreover, tasks are carried out. tenance they respon- have work only prisoners are on work release and sibility over UNEMPLOYMENT COMPENSATION maintenance mechanics do not have REVIEW, BOARD OF types with all of inmates. contact Respondent. Also, mechanics, unlike maintenance Pennsylvania. Commonwealth Court belong to a uniformed force prison guards expected quelling that is to aid in distur- Submitted on Briefs Dec. insuring

bances and inmates’ incarceration. Decided Jan. the inmates preparing them to ensure officers un- custody, remain in correction extensive,

dergo training an five-weeks of aid, weapons training,

in first self-defense tactics, situations, hostage

and defensive escape situa- prevention,

inmate suicide

tions, riots, emotionally handling disturbed

inmates, block report cell periodic training. Mainte-

log-writing training

nance mechanics attend a pris- that all other mechanics in the

course

on attend to familiarize themselves prison policies, not to ensure the custo-

dy prisoners. are not

Because maintenance mechanics

prison guards meaning within the of Sec- Act,

tion 604 of the the Board erred them

including part prison as

guards Accordingly, unit. the order of the

Board is reversed. SIMPSON,

Judge dissents.

ORDER NOW, day January,

AND 11th this Pennsylvania the order of the Labor *2 O’Brien, Summit,

Joseph A. Clarks for petitioner. Jordan, Counsel,

Paul R. Assistant Har- risburg, respondent. for PELLEGRINI, Judge, BEFORE: JUBELIRER, Judge, COHN SIMPSON, Judge. Judge BY

OPINION PELLEGRINI.1 (Claimant) petitions R. Risse William for Unemployment review of an order of the (Board) Compensation Board of Review of the which affirming decision Referee petition appeal denied his because he engaged in a qualifying was and was for benefits un- Section of the Unemployment der (Law).2 Law Compensation Because the Board erred in that Claim- substantially ant’s sideline had changed, we reverse the decision of the Board. employed

Claimant was last on a full- time basis Johnson Controls as an ac- making year. count executive during Since 1986 and the time he was Controls, employed by Johnson engaged doing in a sideline writ- business ing, photography, consulting, script- writing services under the name “Bill Marketing and Public Relations” (Risse Marketing). When he was termi- nated from Johnson Controls in October applied he for and received unem- ployment compensation benefits. Octo- ber Claimant informed UC Ser- assigned opinion engaged self-employment: 1. This case was to the writer he is Pro- 7, 2012, vided, however, prior January Judge when Pelle- employe That an who is able grini Judge. became President and available for full-time work shall be engaged self-employment by deemed not Ex.Sess., 2. Act of December Second participation reason of continued without amended, (1937) 2897, P.L. as 43 P.S. change during period of unem- Law, 802(h). § Under Section any activity.” ployment in eligible unemployment an individual is not compensation any benefits for week "[i]n expand contracted with a He testified that he did not seek to that he had vice Center business, provide consulting go ser- did not out and seek new campaign Senate clients, vices, benefits were any marketing, any and his do hire em- *3 consulting that work suspended. ployees, get When or an office for Risse Market- 2010, November Claimant sub- ing only ended on in and he worked when he Questionnaire seeking mitted a Claimant received a call from someone. benefits re- have his The Referee found that Claimant sumed, Service denied but the UC Center ineligible was for benefits under Section it determined that request that because his self-employment because had making him self-employed, was Claimant substantially changed in as Claimant’s appealed. ineligible for benefits. Claimant Marketing come from Risse had more than Referee, the Claimant testified Before to 2010. ap doubled from 2009 Claimant worked for several previously he had Board, to the the pealed adopted stations, Pennsylvania including television Referee’s decision and affirmed the denial 1979, through from 1976 WBRE

WVTA appeal of benefits. This followed.3 1983, through and then WNEP from 1979 that argues Claimant the Board He through from 1983 left WNEP erred in that there awas sub Information Director to work as the Public change stantial in Claimant’s sideline busi Community and Director of Affairs of ness based on the increase in income from County, where he remained Lackawanna the sideline business because the sideline began working until he at Johnson Con- way business was handled the same for 25 February He testified that trols in years and had not he changed since lost past business for the 25 he had employment full-time with Johnson that he his work at home. years and did Controls. $1,300 per He testified that he received month in retirement benefits from Lacka- Law, Section Under County. wanna to determine whether an individual who 2008, in engages self-employment testified that in 2007 and is

Claimant benefits, Marketing he had no income from Risse we must determine whether: (1) him self-employment began prior because Johnson Controls had work- the ter (2) 2009, employment; In from full-time ing frequently. out of town mination only self-employment the without consulting work occurred continued early change after the full-time em spring, in the “late summer.” (3) 2010, terminated; claimant provided only ployment he service for Conxx in was the February employ available for full-time and March and worked remains (4) ment; July through early self-employment from was not campaign Senate of the claimant’s primary November. Claimant estimated that he source livelihood. week, approximately per Unemployment Compensation worked 10 hours Kress v. Review, (Pa. 632, 23 A.3d 636-37 July fewer in but more hours Board hours Cmwlth.2011) v. Day (quoting as Election drew nearer. Claimant Dausch Unem Review, Board ployment Compensation stated that his income from Risse Market- (Pa.Cmwlth.1999)). $8,000 230, n. 7 ing in 2009 and in 2010. 725 A.2d 232 was Myers Unemployment Compensa- scope determin- dence. 3. Our of review is limited to Review, ing rights whether constitutional were violat- 533 Pa. 625 A.2d tion Board of ed, findings (1993). an error of law was committed or supported fact were not substantial evi- case, proving bears the burden of In this went from zero “Claimant Claimant non-disqualifying under that his hours in 2007 approxi- worked and 2008 to 402(h).” Id., (citing Section at 686 O’Hara mately 10 hours week for the Senate Unemployment Compensation campaign July through early from Novem- 648 A.2d 1311 Pa.Cmwlth. in ber and his revenues increased (1994)). in 2009 to in 2010. $8000 though changes Even are substantial The issue this case is whether terms, increases in percentage prong meets the second of that earned, amount of money periodic and the test, is, self-employment whether his *4 nature that employment, of those increases after substantially changed his full-time are not substantial to establish that he was case, In employment ended. this the transitioning activity that sideline to full- Board found that Claimant’s involvement That, employment. time together taken activity in substantially his sideline with the facts that he not did seek to the in changed because of increase reve- business, expand go the did not out and from nues 2009 when he earned to clients, seek new no marketing did for disquali- 2010 when he earned Marketing Risse in worked being eligible fied Claimant from for bene- someone, when he received a call from fits. established that his sideline business had determining “In whether a sub substantially not changed. change stantial has occurred in a sideline Accordingly because Claimant’s sideline business, primarily we have focused on activity change, business did not working whether a claimant is in the activ not ineligible under from receiv- ity significantly for more hours than he did ing unemployment compensation benefits Kress, prior separation.” to 23 A.3d at reasons, we the reverse deci- 636-37. We did so because the increase in sion of the Board. the claimant’s sideline work showed that transitioning the claimant was or had tran activity

sitioned his sideline to full-time ORDER work. In Higgins Unemployment Com NOW, AND day January, this 12th of Review, pensation Board 45 Pa.Cmwlth. of 2012, the Unemployment order of the (1979), 405 A.2d 1024 we held that a Review, Compensation Board of dated substantial change occurred where the May is reversed. claimant every worked 10 hours third prior weekend to termination and 40 to 45 BY Judge CONCURRING OPINION per hours week after termination. COHN JUBELIRER. Quinn Unemployment Compensation 67 Although agree Pa.Cmwlth. 446 I majority’s with the (1982), A.2d 714 we held that a substantial conclusion that the in finding Board erred change (Claimant) occurred where a claimant went William R. ineligible, I do working reason, per hours week in a respectfully his so for different and I activity sideline to 60 disagree hours week after by the rationale offered the termination. To make out then majority. that a I that majority believe the es- activity sideline changed, has Claimant has tablishes a new standard for to show activity that his sideline was not in whether there been a has process the transitioning change activity full-time in sideline under Section employment. of the Unemployment Compensa- 802(h). Law,1 multi-year earnings, § the 43 P.S. This section Board should not tion consider, here, claimant will be provides just year that a as it did im- any week which he is “[i]n benefits for mediately year question in preceding Provided, self-employment: in engaged change to determine whether a substantial however, employe That an who is able and Additionally, has occurred. the Board ar- work shall be available for full-time in gues its brief that the number of hours engaged self-employment deemed Claimant worked between 2009 and 2010 with participation reason of continued necessarily had to double because his period change during out substantial gross earnings doubled and he did not P.S. any activity.” (Board’s 9-10.) raise his rates. Br. at 802(h). § majority’s The statement it Applying the Board’s rationale would make out then that a sideline “[t]o appear, considering when all of the evi- that his changed, has Claimant has show record, in the dence Board did process in the sideline was not not, that work hours for transitioning employment!,]” to full-time activity historically higher were *5 Unemployment Compensation than those 2009 and 2010. Claimant (Pa. 79, 82 35 A.3d also testified that his work for the sideline Cmwlth.2012), appears to announce new exclusively occurred almost in the 402(h) that, believe, for Section I test evenings night averaged or at and that he entirely plain with the lan consistent ten hours week when he had a market- 402(h) or the current guage of Section (Referee 11.) job. ing Hr’g Tr. at Given of the law. state factors, I all these would conclude that However, with the agree I do not finding the Board erred in ineli- Board’s sole reliance on the difference gible solely based on the increase of earn- gross earnings between 2009 Claimant’s ings between 2009 and 2010. there was a and 2010 determine change in sideline Claimant’s I note that the record contains business. ac-

tax documents for Claimant’s sideline 2006 that reveal that

tivity from and years were gross earnings

his (Sched- $9,020,

$15,447 respectively. 3.) 2006, ule for 2004 and R. Item Cs COUNTY, LANCASTER Petitioner Moreover, Claimant testified that his activ- ity past in 2010 was consistent with his (Referee activity.

work his sideline LABOR PENNSYLVANIA 11.) 9, Hr’g gross Tr. at earn- BOARD, RELATIONS ings of in 2010 are consistent with Respondent. activity in earnings his from his sideline 2006, years, notably Pennsylvania. earlier Commonwealth Court appear gross to make Claimant’s Argued Dec. outlier, rather than earnings of Decided Jan. yardstick by In other words I should be measured. that,

believe where there is evidence Ex.Sess., (1937)

1. Act of December Second P.L. as amended.

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