P.A. Precht v. UCBR

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Peter A. Precht, :
Petitioner :
:
v. :
:
Unemployment Compensation :
Board of Review, : No. 710 C.D. 2021
Respondent : Argued: September 13, 2023
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION BY
JUDGE COVEY FILED: December 18, 2023
Peter A. Precht (Claimant) petitions this Court for review of the
Unemployment Compensation (UC) Board of Review’s (UCBR) May 27, 2021
order affirming the Referee’s decision that denied Claimant UC benefits under
Section 402(h) of the UC Law (Law).1 There are two issues before this Court: (1)
whether the positive steps analysis is applicable to a determination of whether an
individual is self-employed under the Law after he has been separated from his
employment; and (2) whether Claimant was self-employed under the Law.2 After
review, this Court affirms.
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(h) (referring to self-employment).
2
Claimant presented two issues in his Statement of Questions Involved: (1) “[w]hether
Claimant was self-employed under the Law when he conceived of a video consulting business,
and took steps to develop a website for the business, but never launched the business and never
Facts
Claimant separated from Walman Optical (Employer) on August 6,
2020.3 See Certified Record (C.R.) at 60 (Referee Finding of Fact (FOF) No. 1).
The next day, on August 7, 2020, Claimant created Eye C Clearly, LLC, an optical
consultation business. See C.R. at 60, Referee FOF No. 2; see also C.R. at 83, UCBR
FOF No. B1. Claimant designed and created a website for his business. See C.R. at
83, UCBR FOF No. B4. Claimant spent approximately $2,983.00 in 2020 on
advertising for his business. See C.R. at 83, UCBR FOF No. B2. Claimant
submitted to the Altoona UC Service Center an Internal Revenue Service (IRS) Form
1040 Schedule C for the 2020 tax year (Schedule C) indicating a net loss of
$11,473.00 on his business. See C.R. at 60, Referee FOF No. 5.
performed services in exchange for remuneration[;]” and (2) “[w]hether the ‘positive steps’
analysis is inapplicable to a determination of whether an individual is self-employed under the
Law, and should be abandoned.” Claimant Br. at 3. This Court has reordered the issues for ease
of discussion. Contrary to the issues stated above, the Dissent implies that the Majority raised its
own issues.
3
The Dissent emphasizes “Claimant’s disqualification from receiving the UC benefits due
to him based on his involuntary unemployment from Employer appears contrary to the purpose
and underpinnings of the Law[,]” and “Claimant’s unemployment, and resulting economic
insecurity, was due to his losing his job through no fault of his own.” Precht v. Unemployment
Comp. Bd. of Rev., ___ A.3d ___ (Pa. Cmwlth. No. 710 C.D. 2021, filed Dec. 18, 2023) (Cohn
Jubelirer, P.J., dissenting), slip op. at 24 (emphasis added). However, Claimant stated in his Initial
Internet Claim that Employer discharged him for violating a work rule. See Certified Record
(C.R.) at 9. Further, Claimant testified that Employer discharged him for making disparaging
remarks about Employer in an email. See C.R. at 54. Consequently, the Dissent’s emphasis is
unwarranted.
The Dissent also states that it “cannot ignore that Claimant was terminated from his
employment during the COVID-19 pandemic.” Precht, ___ A.3d at ___ (Cohn Jubelirer, P.J.,
dissenting), slip op. at 23. However, the only references to the COVID-19 pandemic in the entire
certified record are as follows: in the claim record, wherein it stated that the claim was “NOT COVID
RELATED,” C.R. at 3; on the notice of hearing, wherein it stated the changes in the UCBR’s
Regulations due to COVID-19, including, inter alia, the use of telephone hearings, see C.R. at 45;
and Claimant’s testimony, wherein he explained why he believed his business would be successful,
i.e., “I think that with COVID world [sic], a lot of people -- more people are buying stuff online,
so they want to talk to me about it, kind of thing, so[.]” C.R. at 56. Thus, this Court should not
be considering the impact thereof as a basis for its decision.
2
On December 6, 2020, Claimant applied for UC benefits. On January
25, 2021, the Altoona UC Service Center determined that Claimant was ineligible
for UC benefits under Section 402(h) of the Law. Claimant appealed and a Referee
held a hearing on March 4, 2021. On March 5, 2021, the Referee affirmed the UC
Service Center’s determination. Claimant appealed to the UCBR, which adopted
the Referee’s findings of fact, made additional findings of fact, and affirmed the
Referee’s decision. Claimant appealed to this Court.4
On August 22, 2022, Claimant filed an Application for Oral Argument
(Application). On August 31, 2022, the UCBR filed an answer opposing the
Application. By March 31, 2023 Order, this Court granted Claimant’s Application.
Oral Argument occurred on September 13, 2023. This case is now ripe for
disposition.
Discussion
Initially, in Lowman v. Unemployment Compensation Board of Review,
235 A.3d 278 (Pa. 2020), our Supreme Court explained:
The [Law] treats “services performed by an individual for
wages” as employment until it is proven that the individual
is not subject to control and is customarily engaged in an
independently established trade, occupation, profession
or business. [Section 4(l)(2)(B) of the Law,] 43 P.S. §
753(l)(2)(B). The entire scheme of the [Law] is designed
around concepts of “employee,” “employment” and by
extension, employers. The use of the term “self-
employment” is one way to describe those scenarios
4
“‘Our scope of review is limited to determining whether constitutional rights were
violated, whether an error of law was committed, or whether the findings of fact were unsupported
by substantial evidence.’ Miller v. Unemployment Comp. Bd. of Rev[.], 83 A.3d 484, 486 n.2 (Pa.
Cmwlth. 2014).” Talty v. Unemployment Comp. Bd. of Rev., 197 A.3d 842, 843 n.4 (Pa. Cmwlth.
2018).
3
contemplated by the two-factor test in Section [4](l)(2)(B)
[of the Law] that preclude a finding of employment.
While Pennsylvania courts have instead used the term
“independent contractor” as a shorthand for those
individuals who are not in “employment,” we note that the
term “independent contractor” appears nowhere in the
[Law]. Courts could have used the term “in self-
employment” just as readily to describe an individual who
is not “in employment” for purposes of the [Law]. In fact,
this Court in Sun Shipbuilding [&] Dry Dock Co. v.
[Unemployment Compensation Board of Review], . . . 56
A.2d 254 ([Pa.] 1948) . . . , used the terms independent
contractor, self-employed and businessman
interchangeably in the [O]pinion dealing with a claimant’s
eligibility for initial benefits when he quit his job to start
his own roofing business. The Sun Shipbuilding [&] Dry
Dock Co. Court further used the then-extant test in Section
[4](l)(2)(B) [of the Law] as the springboard to explain the
status of the claimant, a proclaimed businessman, as
excluded from the definition of “in employment.” Id.at . . . 254. One who is an independent contractor can
equally be described as self-employed.
The General Assembly’s use of the term “self-
employment” in Section [4]02(h) [of the Law] as a [UC]
benefits ineligibility criteria is in sync with Section
[4](l)(2)(B) [of the Law] because if an individual is not
found to be in “employment,” he is not an “employe”
covered by the [Law]. 43 P.S. § 753(i) (defining
“employe” as “every individual . . . who is performing . . .
or has performed services for an employer in an
employment subject to [the Law][]”). Thus, we conclude
the General Assembly intended that Section
[4](l)(2)(B) [of the Law] provides the test for
determining whether an individual is “engaged in self-
employment” as that term is used in Section [4]02(h)
[of the Law]. Whether an individual is self-employed,
as the term is used in [Section [4]02(h) of the Law], is
to be determined through application of the control
and independence factors in Section [4](l)(2)(B) [of the
Law].
Lowman, 235 A.3d at 297-98 (italics added) (bold and underline emphasis added;
footnote omitted).
4
However, the Lowman Court made clear:
Our interpretation of Section [4](l)(2)(B) [of the Law]
promotes a comprehensive understanding of a claimant’s
personal services. Unlike the “positive steps” test, which
focuses on a claimant’s stand-alone activities, Section
[4](l)(2)(B) [of the Law] requires a structured two-
factor analysis of a claimant’s personal services where
they are performed within the context of a work
relationship with a third party.[FN]24 In any situation,
where the challenging party fails to meet its burden of
proof as to both components of Section [4](l)(2)(B) [of the
Law], the claimant remains eligible for benefits.
[FN]24
We express no opinion on the use of a
“positive steps” analysis as part of the test for
self-employment embodied in Section
[4](l)(2)(B) [of the Law] where the personal
services are performed by an individual in a
stand-alone context. See[,] e.g., Buchanan [v.
Unemployment Comp. Bd. of Rev., 581 A.2d 1005(Pa. Cmwlth. 1990),] and Teets [v. Unemployment
Comp. Bd. of Rev., 615 A.2d 987 (Pa. Cmwlth.
1992)].
Lowman, 235 A.3d at 298 (italics added) (bold and underline emphasis added;
footnote omitted).5
In Buchanan, this Court explained:
This Court well recognizes the purpose and thrust behind
the enactment of the Law, which is to compensate those
who are unemployed through no fault of their own. If one
undertakes an activity in an entrepreneurial spirit with
all intentions of starting a new business, trade,
profession or occupation, he becomes a self-employed
businessman. If subsequently his business fails or proves
5
The Dissent contends that by adding emphasis to the above-quoted portions of the
Lowman Opinion, the Majority is somehow misinterpreting the Lowman Court’s holding.
However, the Majority, unlike the Dissent, is not interpreting the Lowman decision. Rather, the
Majority is merely emphasizing the Lowman language relevant to the instant case. Contrarily, the
Dissent repeats throughout its Opinion that our Supreme Court has rejected the positive steps
analysis in a third-party context, notwithstanding that the instant case involves self-employment
in the stand-alone context and does not involve a third party.
5
to be unprofitable[,] he does not have the option of falling
back upon [UC] benefits because the Law was not enacted
to compensate individuals who fail in their business
ventures and become unemployed businessmen. The Law
is clearly not insurance for individual business
undertakings.
Buchanan, 581 A.2d at 1008 (emphasis added; citations omitted).
The Buchanan Court expounded:
We believe the situation before us warrants a close
examination of the cases in which this Court has held an
activity engaged in after separation from full-time
employment has been considered self-employment. In
Leary v. Unemployment Compensation Board of
Review, . . . 322 A.2d 749 ([Pa. Cmwlth.] 1974), th[is]
Court held that a claimant who had formed a corporation
for the purpose of construction of buildings after being laid
off from employment, who had elected himself president
of the corporation and thereafter entered into an agreement
to buy a parcel of land[,] was found to be self-employed
and, therefore, ineligible for benefits. The date that self-
employment began, th[is] Court said, was the date of
incorporation because the act of incorporating was the
“only positive move of Leary in establishing his own
business.” Id. . . . at 750.
In addition, th[is] Court in Balmer v. Unemployment
Compensation Board of Review, . . . 368 A.2d 1349 ([Pa.
Cmwlth.] 1977), found that the claimant was precluded
from collecting [UC] benefits because he was self-
employed. Specifically, the claimant, after termination of
his full-time job, established an independent elevator
servicing business by providing capital for office
equipment, advertising and insurance. The claimant, who
actively participated in performing services by such
business and who also received income for his labor, was
found to be self-employed, and, therefore, ineligible for
[UC] benefits.
The [Pennsylvania Superior C]ourt again found a claimant
to be ineligible for benefits in Alick v. Unemployment
Compensation Board of Review, . . . 166 A.2d 342 ([Pa.
Super.] 1960), where, subsequent to separation from his
regular job, the claimant “entered the field of self-
6
employment as an air conditioner serviceman,
advertising his services, and listing the same in the
telephone book.” Id. . . . at 343.
Moreover, [this Court] held that the claimants in Kirk v.
Unemployment Compensation Board of Review, . . . 425
A.2d 1188 ([Pa. Cmwlth.] 1981)[,] could not receive [UC]
benefits due to their self-employment. The claimants in
that case, after separation from employment, received a
business loan from a bank for the purpose of starting a
landscaping business, purchased a tractor and signed a
contract to begin subcontracting jobs. [This Court] found
the claimants to be self-employed as of the time of the
approval of the bank loan because this act was the
requisite positive step in embarking upon an
independent business venture.
Buchanan, 581 A.2d at 1008 (emphasis added).
The Buchanan Court determined that the claimant therein was not self-
employed because he “did not form a corporation for the purpose of selling jewelry.
He did not advertise, list a telephone number for this alleged business[,] or obtain
insurance for his activity.” Id. at 1009. Similarly, the Teets Court determined the
claimant therein was not self-employed because “[t]here was no finding and no
evidence presented as to the level of time and effort [the] claimant put into this
project. [The c]laimant spent only $250[.00] on a sales kit . . . [and the c]laimant
received less than $6[.00] in income from her activities.”6 Teets, 615 A.2d at 990.
This Court recently considered Buchanan’s continued applicability in
light of Lowman in Collins v. Unemployment Compensation Board of Review, 281
A.3d 364 (Pa. Cmwlth. 2022). Therein, this Court explained:
6
The Dissent maintains that the Majority misreads Buchanan because the Buchanan Court
considered the totality of the circumstances to determine whether a given claimant is truly engaged
in self-employment, not whether a claimant took one positive act. However, the Majority does not
rule or posit that one act determines whether a claimant is self-employed for purposes of the Law.
Rather, in relying upon the positive steps analysis, the Majority considers the totality of
circumstances, including a claimant’s positive steps in establishing a business, in making said
determination.
7
After setting forth the [] test in Lowman, [our] Supreme
Court recognized that Lowman was a situation involving
independent contractors, which differed from
instances “where the personal services are performed
by an individual in a stand-alone context,” such as the
present case. [Lowman,] 235 A.3d at 298 & n.24. In these
latter cases, the “positive steps” analysis has traditionally
been performed, and [our] Supreme Court “express[ed]
no opinion on the use of a ‘positive steps’ analysis as a
part of the test for self-employment embodied in
Section [4](l)(2)(B) [of the Law],” as had been done in
Buchanan and Teets . . . . [Lowman, 235 A.3d] at 298 n.24
(emphasis added).
Collins, 281 A.3d at 370-71 (footnote omitted; emphasis added). “Therefore, as
[our] Supreme Court did not disturb our precedent applying the positive steps
analysis as a part of the two-prong approach discussed in Lowman, [the Collins
Court] appl[ied] that approach [therein].”7 Collins, 281 A.3d at 371. Because the
instant case also involves self-employment in a stand-alone context, and not in the
context of a work relationship with a third party as in Lowman, the UCBR did not
err by using the positive steps test in its analysis.8
7
The Collins Court determined that the claimant therein was not self-employed because
there [was] no indication in the record that [the c]laimant’s online
business was intended to replace audiology as her primary means of
employment; rather it was merely a way of turning her hobbies
into extra money by selling her crafts and jewelry at the online
equivalent of a flea market[, i.e., Etsy].
Collins, 281 A.3d at 375 (emphasis added). Contrarily here, “Claimant admitted that his intention
was, and will be, to make the business his primary source of income . . . .” C.R. at 61 (Referee
Dec. at 2).
8
The Dissent insists that the Majority misreads Collins, but nonetheless states that in
Collins, “the panel appropriately looked at the parties’ arguments in light of Lowman, [and]
accurately observed that Lowman did not expressly “disturb” “positive steps” in the stand-
alone context[.]” Precht, ___ A.3d at ___ (Cohn Jubelirer, P.J., dissenting), slip op. at 13
(emphasis added). Here, contrarily, the Dissent believes that simply because Claimant has
requested that this Court dispense with the positive steps test, this Court “must” do so. Id.
8
Notwithstanding all of the above, Claimant insists that this Court, in the
stand-alone context, should evaluate self-employment purely under the two-part test
found in Section 4(l)(2)(B) of the Law, as the Lowman Court did within the context
of a work relationship with a third party. Section 4(l)(2)(B) of the Law provides in
relevant part:
Services performed by an individual for wages shall be
deemed to be employment subject to [the Law], unless and
until it is shown to the satisfaction of the [D]epartment [of
Labor and Industry (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 added).
Importantly, when working for a third party, the first prong, i.e., the
control factor, is key to determining whether an individual is an independent
contractor or an employee. Indeed,
[f]actors typically considered by reviewing courts with
respect to the first prong of the analysis, i.e., whether the
claimant was free from direction and control, include:
whether there was a fixed rate of remuneration;
whether taxes were deducted from the claimant’s
pay; whether the presumed employer supplied
equipment and/or training; whether the presumed
employer set the time and location for the work;
whether the presumed employer had the right to
monitor the claimant’s work and review his
performance; and the requirements and demands
of the presumed employer.
Res[.] Staffing, Inc. v. Unemployment Comp[.] [Bd.] of
Rev[.], 961 A.2d 261, 264 (Pa. Cmwlth. 2008).
9
Begovic v. Unemployment Comp. Bd. of Rev., 234 A.3d 921, 931 (Pa. Cmwlth.
2020).9 None of the above-listed factors apply to self-employment in a stand-alone
context because there is no presumed employer. Rather, the focus is on the
claimant’s stand-alone activities. Thus, because the first prong of Section 4(l)(2)(B)
of the Law is not at issue in the stand-alone context, there remains only one part of
the test to apply.
In determining whether Claimant meets the second prong of Section
4(l)(2)(B) of the Law, i.e., whether Claimant is customarily engaged in an
independently established trade, occupation, profession or business, this Court must
look to the totality of the circumstances. Because the UCBR focused on Claimant’s
stand-alone activities using the positive steps analysis, which the Lowman Court did
not disturb, and is in accord with Collins, this Court will do the same.10
Claimant asserts that he was not self-employed under the Law because
although he conceived of a video optical consulting business and took steps to
develop a website for the business, he never launched the business and never
performed services in exchange for remuneration. However, remuneration cannot
9
The Dissent maintains that the positive steps test relies on subjective determinations
rather than applying the Law. However, the fact that there are numerous factors, which may or
may not apply to each specific case, does not make the determination subjective. The above-
quoted well-established factors used to determine control are not exhaustive, do not all apply all
the time, either do or do not exist, and are also not subjective. Rather, they are simply facts to be
considered in making the determination. See Precht, ___ A.3d at ___ (Cohn Jubelirer, P.J.,
dissenting), slip op. at 16 (“[H]ow many steps result in disqualification, and what kind of steps
are enough? These questions invite referees, the [UCBR], and judges to trade the text of the Law
for their subjective determinations of whether an individual is truly ‘self-employed’ based on their
evaluations of the ‘positive steps’ the claimant has taken.”).
10
In contrast to the Dissent, the Majority does not believe this Court must abandon the
positive steps test merely because Claimant requests that it do so. Moreover, while the Dissent
relies on Lowman for a better part of its reasoning, it admits that the positive steps test “was not
before the [Lowman] Court, so the question was left to be answered another day.” Precht, ___
A.3d at ___ (Cohn Jubelirer, P.J., dissenting), slip op. at 11. Thus, since the positive steps analysis
still applies in the stand-alone context, this Court applies it herein.
10
be the test in a stand-alone context because otherwise an individual could receive
UC benefits, notwithstanding the amount of time he spent operating his independent
business and the positive steps he took in furthering his business, thereby, being
qualified for UC benefits and self-employed at the same time. Further, “[this Court]
ha[s] repeatedly held that a claimant becomes ineligible for benefits once he takes a
positive step toward establishing an independent business.”11 Coleman v.
Unemployment Comp. Bd. of Rev. (Pa. Cmwlth. No. 210 C.D. 2016, filed Dec. 21,
2016), slip op. at 5.12 Claimant’s proposed interpretation is contrary to this Court’s
long-standing precedent. There is also no requirement under the positive steps test
that the business be successful or profitable. See Roberts v. Unemployment Comp.
Bd. of Rev., 422 A.2d 911, 912 (Pa. Cmwlth. 1980) (“[O]ne would have to be naive
to suppose that the corporation had no activities until it sold its first [product].”). In
fact, the opposite is true - only a positive act, such as incorporating, is required.13
See id. Further, “[t]he fact that claimants may have been able and available to take
a full-time job, if one had been offered, during the period for which they claim [UC]
benefits, does not alter the fact that they were self-employed.” Banyas v.
Unemployment Comp. Bd. of Rev. (Pa. Cmwlth. Nos. 521 & 522 C.D. 2009, filed
Oct. 14, 2009), slip op. at 10 n.6 (quoting Kirk, 425 A.2d at 1190 (emphasis added)).
11
The Dissent contends “remuneration can be, and is part of the test, because the plain text
of [] Section 4(l)(2)(B) ties self-employment to remuneration.” Precht, ___ A.3d at ___ (Cohn
Jubelirer, P.J., dissenting), slip op. at 18. In addition, the Dissent does not believe Claimant
“launched” his business because “there were no gross receipts, no gross profits, and, ultimately,
no income from the business.” Id. at 22. Thus, under the Dissent’s reasoning, as long as a
claimant’s business runs at a loss, he is potentially eligible to receive UC benefits, thereby making
UC an insurance policy for any individual establishing his own business. Plainly, that is not the
intent of the Law. See Buchanan, 581 A.2d at 1008 (“The Law is clearly not insurance for
individual business undertakings.”).
12
Unreported decisions of this Court, while not binding, may be cited for their persuasive
value. Section 414(a) of the Internal Operating Procedures of the Commonwealth Court, 210 Pa.
Code § 69.414(a). The unreported opinions cited herein are cited for their persuasive value.
13
This Court acknowledges that incorporating is only one of many factors to be considered
under the positive steps test.
11
Here, Claimant’s Schedule C for his business “EYECCLEARLY
LLC,” which was admitted into evidence, belies Claimant’s assertion that he never
launched the business. C.R. at 20. Claimant incorporated his business with the
Pennsylvania Department of State, applied for and received an Employer
Identification Number, and designed and created a website for his business. See id.According to Claimant’s Schedule C, Claimant spent $2,983.00 on advertising,
$381.00 for legal and professional services, $145.00 on office expenses, $100.00 in
supplies, $59.00 on deductible meals, plus $1,963.00 in other expenses,14 and paid
his employee(s) $5,842.00 in “wages (less employment credit[15]).”16 Id. Thus,
based on the total of these expenses, Claimant declared an $11,473.00 loss for his
business.17 See id. It is difficult to fathom how an individual can declare that he
sustained an $11,473.00 loss by expending such a significant sum of money on a
business he merely conceived, yet never launched. Moreover, Claimant worked in
14
The other expenses included: $21.00 for Visa fees and other business fees; $1,333.00 for
TOPEXPLAINERS.COM; $352.00 for FIVERR.COM; and $257.00 for NNA Services, LLC. See
C.R. at 21.
15
“The Employee Retention Credit [] is a refundable tax credit for businesses that
continued to pay employees while shut down due to the COVID-19 pandemic or had significant
declines in gross receipts from March 13, 2020 to Dec[ember] 31, 2021.”
https://www.irs.gov/coronavirus/employee-retention-credit (last visited Dec. 15, 2023).
16
The wages reported herein refer to wages Claimant paid his employee(s). See
https://www.irs.gov/pub/irs-prior/i1040sc--2020.pdf (last visited Dec. 15, 2023) (the Schedule C
instructions direct: “Do not include salaries and wages de[]ducted elsewhere on your return
or amounts paid to yourself.”) (emphasis added). “[W]e take judicial notice of the [IRS’s]
Instructions for [Schedule C.]” Murray Co., Inc. v. Commonwealth, 401 A.2d 412, 414 (Pa.
Cmwlth. 1979).
17
The Dissent believes that the Majority is fact finding by referencing Claimant’s Schedule
C; however, it is axiomatic that “[w]here substantial evidence supports the [UCBR’s] findings,
they are conclusive on appeal.” Sipps v. Unemployment Comp. Bd. of Rev., 181 A.3d 479, 484
(Pa. Cmwlth. 2018) (quoting Ductmate Indus., Inc. v. Unemployment Comp. Bd. of Rev., 949 A.2d
338, 342 (Pa. Cmwlth. 2008)). Here, Claimant’s Schedule C contains substantial evidence which
supports the UCBR’s findings. Specifically, the Referee found as a fact, which the UCBR adopted:
“[] Claimant submitted a Schedule C for the 2020 tax year indicating a net loss of $11,473[.00].”
C.R. at 87.
12
the optical field for at least 13 years. See C.R. at 54, 56 (“It’s a manner for me to
stay in touch with some old -- ex, [sic] from my old safety career with [Employer]
and help them with their dress eyewear if ever there will be a consultations [sic].”
“These are people that were happy with my optician skills . . . .”). Thus, Eye C
Clearly, LLC was not “merely a way of turning [a] hobb[y] into extra money[.]”18
Collins, 281 A.3d at 375. Rather, all of Claimant’s above information evidences he
took positive steps, involving himself in and embarking on a business, trade,
profession[,] or occupation, and thus was “customarily engaged in an independently
established trade, occupation, profession or business.”19 43 P.S. § 753(l)(2)(B).
“The [UCBR] is the ultimate finder of fact; questions regarding the
weight of evidence and witness credibility are solely within its province.” Lowman,
235 A.3d at 286 n.8. Here, the UCBR concluded:
In considering the findings of fact, the [UCBR] concludes
that [] [C]laimant had taken sufficient positive acts to
establish an[] independent business. [] [C]laimant argues
that he was not customarily engaged in an independently
established business; however, the evidence depicts
otherwise. [] [C]laimant was customarily engaged by
18
The Dissent declares: “I read no requirement in the Law that we are to draw the line at
whether a claimant’s business stemmed from a hobby. Rather, the question is whether, hobby or
not, we can say a claimant is self-employed by looking to Section 4(l)(2)(B)’s two-part test.”
Precht, ___ A.3d at ___ (Cohn Jubelirer, P.J., dissenting), slip op. at 21 n.14. The Majority does
not claim that any requirement exists in the Law. Rather, in distinguishing Collins, the Majority
noted the Collins Court’s language. See supra note 7.
19
The Dissent presents a hypothetical which it purports shows the unworkability of the
positive steps analysis. Specifically, it posits that if two unemployed teachers decided to make
some extra money tutoring and one was hired by a third party, while the other created an LLC, the
teacher who created the LLC would be considered self-employed based on the LLC alone. Clearly,
based on the Majority’s reasoning that would not be the case. However, if teacher two spent
$2,983.00 on advertising, $381.00 for legal and professional services, $145.00 on office expenses,
$100.00 in supplies, $59.00 on deductible meals, plus $1,963.00 in other expenses, paid his/her
employee(s) $5,842.00 in wages (less employment credit), and declared an $11,473.00 loss for
his/her business, depending on the UCBR’s credibility findings, those factors would indeed weigh
in favor of concluding that teacher two was self-employed.
13
forming and registering his legal entity and by spending
money on advertising.
. . . . The [UCBR] recognizes th[e] remedial intent of the
Law, but also that the Law was not intended to subsidize
self-employed individuals. While [] [C]laimant has not
yet received any earnings from his business, there is no
indication that he will abandon his business endeavor.
Rather, throughout the record[,] he communicated his
expectation that his business will be fully operational and
profitable.
C.R. at 83 (UCBR Dec. at 1) (emphasis added). This Court discerns no error in the
UCBR’s reasoning.20
This Court well recognizes the purpose and thrust behind
the enactment of the Law, which is to compensate those
who are unemployed through no fault of their own.
Warden v. Unemployment Comp[.] [Bd.] of Rev[.], . . . 454
A.2d 222 ([Pa. Cmwlth.] 1983). If one undertakes an
activity in an entrepreneurial spirit with all intentions
of starting a new business, trade, profession or
occupation, he becomes a self-employed businessman.
If subsequently his business fails or proves to be
unprofitable[,] he does not have the option of falling back
upon [UC] benefits because the Law was not enacted to
compensate individuals who fail in their business ventures
and become unemployed businessmen. Freas v.
Unemployment Comp[.] [Bd.] of Rev[.], . . . 191 A.2d 740([Pa. Super.] 1963). The Law is clearly not insurance
for individual business undertakings.
20
The Dissent notes that the burden was not on Claimant in these proceedings. However,
the law is well settled that “[i]n deciding whether there is substantial evidence to support the
[UCBR’s] findings, this Court must examine the testimony in the light most favorable to the
prevailing party, . . . giving that party the benefit of any inferences which can logically and
reasonably be drawn from the evidence.” Sipps, 181 A.3d at 484 (quoting Sanders v.
Unemployment Comp. Bd. of Rev., 739 A.2d 616, 618 (Pa. Cmwlth. 1999)). Here, the Department
was the prevailing party; thus, the Majority properly viewed the evidence in the light most
favorable to the Department and gave the Department the benefit of any inferences which could
be logically and reasonably drawn therefrom.
14
Buchanan, 581 A.2d at 1008 (emphasis added); see also Coleman.
It is the positive steps or activity of establishing a business that
disqualifies one from receiving UC benefits. Accordingly, because Claimant has
satisfied the independence factor of Section 4(l)(2)(B) of the Law by taking positive
steps in establishing an independent business, Claimant is self-employed under the
Law. See C.R. at 20 (Claimant’s Schedule C); see also Salamak v. Unemployment
Comp. Bd. of Rev., 497 A.2d 951, 954 (Pa. Cmwlth. 1985) (“While the incorporation
. . . was not the final act in establishing an independent business enterprise, it is
clearly a positive act towards that end.”); Balmer, 368 A.2d at 1350 (“[The] claimant
has admitted actively establishing this business by providing the capital for office
equipment, advertising, and insurance.”); Leary; and Banyas.
Conclusion
Accordingly, this Court holds: (1) that the positive steps analysis is
applicable to a determination of whether an individual is self-employed in a stand-
alone context under the Law after he has been separated from his employment; and
(2) under the positive steps analysis, Claimant is self-employed under the Law.
For all of the above reasons, the UCBR’s order is affirmed.
_________________________________
ANNE E. COVEY, Judge
15
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Peter A. Precht, :
Petitioner :
:
v. :
:
Unemployment Compensation :
Board of Review, : No. 710 C.D. 2021
Respondent :
ORDER
AND NOW, this 18th day of December, 2023, the Unemployment
Compensation Board of Review’s May 27, 2021 order is affirmed.
_________________________________
ANNE E. COVEY, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Peter A. Precht, :
Petitioner :
:
v. : No. 710 C.D. 2021
: Argued: September 13, 2023
Unemployment Compensation :
Board of Review, :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE LORI A. DUMAS, Judge
DISSENTING OPINION BY
PRESIDENT JUDGE COHN JUBELIRER FILED: December 18, 2023
This case concerns two important questions. First, should we continue to
apply the judicially created “positive steps” test to determine whether a claimant is
self-employed in light of its inconsistency with the Unemployment Compensation
Law’s (Law)1 plain text and policy underpinnings? Second, can we say a claimant,
out of work due to no fault of his own, is “self-employed,” and thus ineligible for
unemployment compensation (UC) benefits, due to the claimant having taken a few
steps to develop a side business, but not earning a penny or providing any services?2
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §§
751-919.10.
2
The Majority rephrases the issues raised by Peter A. Precht (Claimant) as “(1) whether
the positive steps analysis is applicable to a determination of whether an individual is self-
(Footnote continued on next page…)
I would answer both questions with a resounding “no.” As applied here, the
“positive steps” test amounts to a judicial rewrite of the otherwise clear statutory text
of Section 4(l)(2)(B).3 Accordingly, I must respectfully dissent from the Majority
opinion which continues to apply a “positive steps” test in the absence of any
demonstration of active, customary engagement in an independent trade or business,
and which, relying on it, incorrectly concludes that Peter A. Precht (Claimant) was
self-employed and thus ineligible for benefits.
I. Background
After working for more than 13 years with Walman Optical Company
(Employer) as an account manager selling prescription eyewear, Claimant was
terminated in August 2020, ultimately qualifying to receive UC benefits based on
that separation. During the COVID-19 pandemic, he looked for a new job but could
not find employment. Claimant conceived of starting an online business through
which he would provide optical services via video consultation. He took steps to
begin designing a website for what he hoped would be a sideline business, and he
formed a limited liability company (LLC). However, Claimant testified that he
never performed any services for, nor received any pay from, this venture. Claimant
continued looking for full-time work, and, at most, devoted 10 hours a week to this
endeavor. The Board found Claimant was self-employed and disqualified him from
receiving the benefits to which he was otherwise entitled as a result of his separation
from employment with Employer.
employed under the Law after he has been separated from his employment; and (2) whether
Claimant was self-employed under the law.” Precht v. Unemployment Comp. Bd. of Rev., __ A.3d
__, __ (Pa. Cmwlth., No. 710 C.D. 2021, filed Dec. 18, 2023), slip op. at 1.
3
43 P.S. § 753(l)(2)(B).
RCJ - 2
The Board did not rely on Claimant’s performance of services or receipt of
wages, specifying that “[C]laimant has not yet received any earnings,” but found
that Claimant took “positive acts” to establish an independent business by “forming
and registering his legal entity and by spending money on advertising.” (Board
Opinion (Op.) at 1 (emphasis added).) In the Board’s view, those “positive acts”
were enough to render Claimant “customarily engaged in an independently
established business.” (Id.) From a policy perspective, the Board “recognize[d]
[the] remedial intent of the Law, but also that the Law was not intended to subsidize
self-employed individuals.” (Id.) It reasoned that “[Claimant’s] expectation that his
business will be fully operational and profitable” was enough. (Id.)
II. “Positive Steps”
In considering the continuing vitality of a “positive steps” test, I begin with
the Law’s text. Section 402 of the Law is a highly consequential part of the UC
statutory scheme, as it sets forth 11 distinct reasons claimants may become ineligible
for benefits. 43 P.S. § 802. At issue here is Section 402(h), which specifically
disqualifies individuals who are “engaged in self-employment” from receiving
unemployment benefits. 43 P.S. § 802(h) (emphasis added). Of course, critical to
determining ineligibility under Section 402(h) is the meaning of “engaged in self-
employment.” Id. Our Supreme Court has made clear that for purposes of Section
402(h), we must look to the two-part self-employment test set forth in the Section
4(l)(2)(B) to determine whether a claimant is self-employed, and therefore,
ineligible. Lowman v. Unemployment Comp. Bd. of Rev., 235 A.3d 278, 298 (Pa.
2020).
RCJ - 3
It is helpful to examine Section 4(l)(2)(B) in context. Section 4(l), the Law’s
definitional section, defines “employment” for the purposes of the Law as “all
personal service performed for remuneration . . . .” 43 P.S. § 753(l)(1) (emphasis
added). Section 4(l)(2)(B) provides in relevant 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 [D]epartment [of Labor and Industry (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) (reformatted for readability) (emphasis added).
On its face, Section 4(l)(2)(B)’s text makes a few points clear. First, key to
employment under Section 4(l) generally, and Section 4(l)(2)(B) in particular, is an
individual’s performance of services for remuneration or wages. This is consistent
with the Law’s definition of “employe,” which requires an individual to “perform[]
services.” 43 P.S. § 753(i). Thus, the first question the plain text requires in
determining whether a claimant is self-employed is whether the claimant performed
services for wages. The text suggests that, if the answer is no, we must conclude
that the claimant is not self-employed.
Subsections (a) and (b) confirm that understanding, as they both situate their
requirements by referring to “such services,” a cross-reference to those “services
performed by an individual for wages.” 43 P.S. § 753(l)(2)(B). Clearly, then,
subpart (a), the “control factor,” and subpart (b), the “independence factor,”
Lowman, 235 A.3d at 283, both depend on the existence of “services performed . . .
RCJ - 4
for wages.” 43 P.S. § 753(l)(2)(B). Thus, reading the text with that cross-reference
in mind, the control factor requires a claimant to have been free from control over
the performance of the claimant’s services performed for wages, and the
independence factor, relevant here, requires that with respect to the claimant’s
services performed for wages, the claimant must be customarily engaged in an
independently established business.
The Law’s language fresh in mind, I turn next to the development of this
Court’s “positive steps” approach in the stand-alone self-employment cases, i.e.,
cases like this one in which a claimant is alleged to have set up their own business
as opposed to working for a third party. This Court began articulating a version of
“positive steps” in Leary v. Unemployment Compensation Board of Review, 322
A.2d 749 (Pa. Cmwlth. 1974). The Leary Court, recognizing that the term self-
employment was undefined and that the cases did “not give us a working definition,”
turned not to Section 4(l)(2)(B), but rather to precedent. This reflects, at the outset,
that our “positive steps” jurisprudence emerged as a judicial construction of an
undefined term. Leary examined and found analogous Salis v. Unemployment
Compensation Board of Review, 190 A.2d 579 (Pa. Super. 1963),4 in which the
Superior Court found a claimant ineligible for benefits as of the week he signed an
agreement to operate a clothing store, a store that actually opened and operated. The
Leary Court explained, for the claimant there, “incorporation, like the execution of
the agreement in Salis[], was a positive but not final act in the establishment of an
independent business enterprise.” Id. at 750 (emphasis added). In the Court’s view,
4
Salis relied on Alick v. Unemployment Compensation Board of Review, 166 A.2d 342,
344 (Pa. Super. 1960), which concluded that a claimant, having “embarked upon self-employment
subsequent to the separation from his full-time work is disqualified under [S]ection 402(h) of the
Law.”
RCJ - 5
the existence of that positive act alone—with no statutory definition to suggest
otherwise—rendered the claimant self-employed as of the date of incorporation, and
accordingly, ineligible. Notably, the claimant in Leary had purchased land and
started building houses (i.e., providing services) with his new corporation. See id.
at 749. Thus, in both of these cases, the issue was not whether the claimants had
become self-employed, as neither could dispute they ultimately were self-employed,
but when their self-employment began.
In several cases post-Leary, we turned to the “positive steps” test as the
approach to determining stand-alone self-employment, using “positive steps” as a
stand-in for a definition of “self-employment.” In Roberts v. Unemployment
Compensation Board of Review, 422 A.2d 911, 912 (Pa. Cmwlth. 1980), we traced
the approach back to its origin: “Since Salis[], the law of this Commonwealth has
been that the positive act of establishing an independent business enterprise renders
ineligible the principals involved . . . because they are self-employed . . . .” (finding
claimants ineligible as of date of incorporation) (emphasis added). See also, e.g.,
Kirk v. Unemployment Comp. Bd. of Rev., 425 A.2d 1188, 1190 (Pa. Cmwlth. 1981)
(“[a] claimant is considered to have embarked upon self-employment . . . when he
performs a ‘positive act . . . .’”), and Balmer v. Unemployment Comp. Bd. of Rev.,
368 A.2d 1349 (Pa. Cmwlth. 1977) (claimant ineligible as of the date of filing
fictitious name for business). These “positive steps” cases, or maybe more
accurately, “positive act” cases, generated a harsh, but administrable, bright-line
rule: one positive act could disqualify a claimant under Section 402(h), and self-
employment began the date of the “positive act.” Notably, none of those cases
reference Section 4(l)(2)(B), using the “positive steps” test in the absence of a
statutory definition. Moreover, while the cases above concluded that the claimants’
RCJ - 6
ineligibility began sometime prior to the businesses’ provision of services for wages,
for example, upon the filing of a document, the claimants in those cases actively
engaged in performing services through their established businesses, all received
some wages for those services, and some intended for any monies received to be
their main income. The Court then examined when that trade or business could be
said to have “begun,” via the “positive steps” analysis.
Interestingly, while a “positive steps” approach was developing with respect
to stand-alone cases, this Court was already applying the Section 4(l)(2)(B) test in
the context of self-employment with a third party. See, e.g., Laswick v.
Unemployment Comp. Bd. of Rev., 310 A.2d 705, 706 (Pa. Cmwlth. 1973) (looking
to Section 4(l)(2)(B) and finding jewelry demonstrator was an employee of the
jewelry company, not self-employed); Kardon v. Unemployment Comp. Bd. of Rev.,
396 A.2d 487, 488 (Pa. Cmwlth. 1979) (applying the same and finding real estate
agent was not self-employed); Crenshaw v. Unemployment Comp. Bd. of Rev., 412
A.2d 682, 685 (Pa. Cmwlth. 1980) (applying the same and finding consultant for
university was not self-employed).
Then, in Buchanan v. Unemployment Compensation Board of Review, 581
A.2d 1005 (Pa. Cmwlth. 1990), we considered Section 4(l)(2)(B) in a stand-alone
self-employment case. The Court had to decide whether a claimant who, after
separation from his employer, spent about $2,000 on supplies to make bracelets and
necklaces to sell at a flea market, and leased space for a spot to sell his wares there
weekly, could be considered self-employed under the Law. Id. at 1006-07. At the
outset, the Buchanan Court acknowledged Section 4(l)(2)(B)’s definition,
referencing the use of that test in the third-party cases. Id. at 1007. It chronicled the
“positive steps” cases of Leary, Balmer, Alick v. Unemployment Compensation
RCJ - 7
Board of Review, 166 A.2d 342 (Pa. Super. 1960), and Kirk, explaining “they indeed
are representative and provide us with a framework in which to analyze the case at
bar.” Id. at 1009. The Court then focused on what the claimant did not do, namely,
advertise, list a phone number, or get insurance. Ultimately, the Court was
persuaded, turning to Section 4(l)(2)(B), that the claimant would have had to sell
jewelry “on a more consistent basis” or “mov[e] from flea market to flea market”
for the Court to find that his activity amounted to “customary engagement in an
independently established . . . business . . . .” Id. Thus, Buchanan signified a
departure from the rigidity of Leary and its progeny, as the Court couched its holding
not within the “positive steps” framework, but within the text of Section 4(l)(2)(B).
See Buchanan, 581 A.2d at 1009 (“We decline, however, to find that the act of
setting up a booth at a weekly flea market constitutes customary engagement in an
independently established trade, occupation, profession or business under Section
4(l)(2)(B) of the Law.”) (emphasis added).
Judge Doyle—quite understandably, given the state of the law until then—
dissented, referencing the line of cases that “require[] only that [the claimant] take a
‘positive step.’” Id. at 1009 (Doyle, J., dissenting). In his view, the “[c]laimant
spent over $2,000[] buying the equipment for his business, went through the trouble
of leasing space, and actually sold jewelry. . . . [T]his is more than a positive step; it
is the conduct of the business itself.” Id. Thus, the Buchanan dissent further reveals
that Buchanan was not a continuation of Leary’s strictures—but was a departure
therefrom.
The Court in Teets v. Unemployment Compensation Board of Review, 615
A.2d 987 (Pa. Cmwlth. 1992), faced a similar issue: whether a claimant who spent
$250 on a sales kit to become part of a “pyramidal sales program” and who earned
RCJ - 8
$6 in that pursuit was self-employed. Id. at 988. Finding Buchanan’s analysis
directly on point, and acknowledging Section 4(l)(2)(B)’s applicability, the Court
briskly concluded that, under Buchanan, that claimant could not be considered self-
employed. Id. at 990.
Recently, our Supreme Court addressed Sections 402(h) and (4)(l)(2)(B) in
the context of a third-party self-employment case. In Lowman, the issue was whether
a claimant who, after separation from his employer, decided to drive for the ride-
share service Uber, was self-employed under Section 402(h), and thus ineligible for
benefits. In analyzing that question, the Supreme Court began by emphasizing,
without qualification, that Section 4(l)(2)(B) provides “the test for determining
whether an individual is ‘engaged in self-employment’ as that term is used in Section
[402](h).” Lowman, 235 A.3d at 298 (emphasis added). Moreover, the Supreme
Court rejected the “positive steps” test in the third-party context, reasoning that its
interpretation . . . promotes a comprehensive understanding of a
claimant’s personal services. Unlike the ‘positive steps’ test, which
focuses on a claimant’s stand-alone activities, Section [4](l)(2)(B)
requires a structured two-factor analysis of a claimant’s personal
services when they are performed within the context of a work
relationship with a third party.
Id. at 298. The Lowman Court reiterated that, with respect to both factors, the party
challenging a claimant’s eligibility shoulders the burden of proof. Id.
Applying the statutory two-part test found in Section 4(l)(2)(B), the Court
determined that, on that record, the claimant was not self-employed; although the
claimant’s situation satisfied the control factor, it did not satisfy the independence
factor. Id. at 303-07. In a series of footnotes, the Court provided a window into its
perspective on “positive steps.” First, footnote 23—which plainly has relevance in
both the stand-alone and third-party context—states, “[e]ither a claimant is self-
RCJ - 9
employed or not. The concept of referring to activities as ‘positive steps’ adds
nothing to the analysis of the actual services performed by a claimant.” Id. at 298
n.23 (emphasis added). That said, it “express[ed] no opinion on the use of a
‘positive steps’ analysis as part of the test for self-employment . . . where the
personal services are performed by an individual in a stand-alone context,” citing
Buchanan and Teets. Id. at 298 n.24 (emphasis added).
That same year, the Supreme Court addressed the meaning of “customarily
engaged” in A Special Touch v. Department of Labor and Industry, Office of
Unemployment Compensation Tax Services, 228 A.3d 489 (Pa. 2020). Looking to
dictionary definitions to determine the plain meaning of the term, Justice Baer
explained “the meaning of the phrase ‘customarily engaged’ requires an individual
to be [(i)] usually, habitually, or regularly employed or involved in activity; or [(ii)]
employed or involved in activity according to the customs, general practice, or usual
order of things.” Id. at 503 (internal citation and quotation marks omitted).5
With the statutory text, our Court’s precedent, and the Supreme Court’s recent
cases in mind, I must respectfully disagree with the Majority’s interpretation of all
three. In its block quotation of Lowman, the Majority underlines and bolds where
the Supreme Court qualified its interpretation of Section 4(l)(2)(B), which discarded
“positive steps” “within the context of a work relationship with a third party.”
5
Notably, in several UC cases of recent memory, the Supreme Court has reversed this
Court for reading requirements into the Law that do not appear in its text. See Lowman, 235 A.3d
at 298 (“the Commonwealth Court’s novel pronouncement . . . is facially incompatible with
Section [4]02(h) . . . .”); A Special Touch, 228 A.3d at 495 (“Rather than engage in a statutory
construction analysis,” the Commonwealth Court applied a three-part test.); Danielle Viktor, Ltd.
v. Dep’t of Lab. & Indus., Bureau of Emp. Tax Operations, 892 A.2d 781, 801 (Pa. 2006) (“[W]e
reject that part of the reasoning of the Commonwealth Court that established some universal
requirement to find a ‘proprietary’ interest based on ownership of assets or sharing in risk in order
to meet the independence criterion of the statute.”).
RCJ - 10
Precht v. Unemployment Comp. Bd. of Rev., __ A.3d __, __ (Pa. Cmwlth., No. 710
C.D. 2021, filed Dec. 18, 2023), slip op. at 5 (quoting Lowman, 235 A.3d at 298)
(emphasis added in Precht). It seems to read the foregoing sentence as proof that
“positive steps” should not also be discarded in stand-alone cases, as the Supreme
Court only explicitly rejected it in third-party cases. Moreover, it seems to interpret
footnote 23 of Lowman, emphasizing that the Supreme Court expressed no opinion
on the continued vitality of “positive steps” in the stand-alone context, to mean that
we should continue applying “positive steps.”
However, the Supreme Court’s pronouncement that Section 4(l)(2)(B) is “the
test for determining whether an individual is ‘engaged in self-employment’” under
Section 402(h) was not limited to situations where a claimant provided services for
a third party. Lowman, 235 A.3d at 298 (emphasis added). Moreover, I construe the
Lowman Court’s expression of no opinion as a simple expression of judicial
restraint, not as implicit approval. The specific question whether positive steps
should also be abandoned in the stand-alone context was not before the Court, so the
question was left to be answered another day. What is clear—regardless of whether
“positive steps” is a part of our analysis or not—is that we are to apply Section
4(l)(2)(B)’s test in all Section 402(h) cases—stand-alone or third-party.
The Majority’s reading of Buchanan also misses the mark because it does not
fully appreciate the key difference, discussed above, between the Leary line of cases
and Buchanan’s departure from it. The Majority block quotes Buchanan’s
discussion of Leary, Balmer, Alick, and Kirk. But a close reading of Buchanan, and
Judge Doyle’s dissent, reveals that the Buchanan majority, while describing those
cases as “a framework,” did not apply them. Buchanan, 581 A.2d at 1009. Indeed,
the Buchanan Court insisted on looking at the totality of the circumstances to
RCJ - 11
determine whether a given claimant is truly engaged in self-employment, not
whether, as Leary would require, the claimant took one positive act. Had the
Buchanan majority simply been business as usual, Judge Doyle’s perspective would
undoubtedly have won the day, as the claimant in that case clearly engaged in one
or more “positive steps” to establish his business.
Indeed, neither Buchanan nor Teets considered only whether the claimants
took “positive steps,” but expressly examined the actual activities of and services
provided by the allegedly self-employed claimants to determine if they were
customarily engaged in an independent business under Section 4(l)(2)(B) so as to be
considered self-employed. Reviewing those claimants’ actual activities and
services, the Court held that the claimants were not customarily engaged in an
independent business and, therefore, not self-employed. Teets, 615 A.2d at 990;
Buchanan, 581 A.2d at 1009.
The Majority suggests its adherence to “positive steps” is warranted by
Collins v. Unemployment Compensation Board of Review, 281 A.3d 364 (Pa.
Cmwlth. 2022), and accordingly, it concludes the Board did not err in applying it.
Precht, __ A.3d at __, slip op. at 8-9. I cannot disagree that the Board could have
reasonably relied on Collins to continue applying “positive steps” as part of the
inquiry. That said, Collins’ context reveals why it need not, for purposes of our
decision today, be construed as our final word on the matter.6 There, a three-judge
panel of this Court had its first post-Lowman opportunity to examine Sections 402(h)
and 402(l)(2)(B) in a stand-alone self-employment case. The claimant sold jewelry
6
I would also note that the Board here did not simply use the “positive steps” test “in its
analysis,” Precht, __ A.3d at __, slip op. at 9; the Board appears to have used that test as its only
analysis, focusing only on Claimant’s registration of the business and spending money on
advertising. The Board’s arguments do not, in my view, use that analysis as a part of the Section
4(l)(2)(B) test as required by Lowman.
RCJ - 12
on the online platform Etsy, and the Board found she had formed an LLC, set up a
bank account for the business, and sold four pieces, earning approximately $500. Id.
at 366-67, 373. Given the factual similarities to Buchanan—indeed, Collins appears
to be a digital-age version of Buchanan—it is entirely unsurprising that the claimant
argued Buchanan was analogous and should control. Id. at 367-68. Both sides in
Collins thus situated their arguments within the “positive steps” framework. Id.Given that, the panel appropriately looked at the parties’ arguments in light of
Lowman, accurately observed that Lowman did not expressly “disturb” “positive
steps” in the stand-alone context, but it did not authoritatively declare that we
required adherence to “positive steps.” Id. at 371. Here, by contrast, Claimant
expressly asks this Court, sitting en banc, to remain faithful to the plain text of the
Law and dispense with “positive steps,” an invitation I believe we must accept.7
The Majority correctly observes that the control factor is not at issue here,
where it is undisputed that Claimant is free from the control of an employer. Precht,
__ A.3d at __, slip op. at 10. However, the Majority, without explaining precisely
why, leaps to concluding that in stand-alone cases, “there remains only one part of
the test to apply, thereby requiring a positive steps analysis.” Id. (emphasis
added). First, the Supreme Court in Lowman certainly did not say “positive steps”
was required; the Court only left open the question of whether it could still form
part of the analysis after Lowman. Lowman, 235 A.3d at 298 n.24. Nor does Collins
suggest that “positive steps” is required in applying the independence factor, as we
7
To be clear, I do not believe that “simply because [] Claimant has requested that this
Court dispense with the positive steps test, [we] ‘must’ do so.” Precht, __ A.3d at __ n.8, slip op.
at 9, n.8 (emphasis added). Rather, as explained above, when a party asks this Court to dispense
with a judge-made test which runs contrary to the plain text of a statute, and which does not
enhance our analysis in any meaningful way, I believe we must accept the invitation to dispense
with such a test.
RCJ - 13
merely said that the Supreme Court did not disturb “positive steps,” so we would
apply it there, ultimately finding the claimant not self-employed. Collins, 281 A.3d
at 371.8
The Supreme Court has definitively said “positive steps” has no place in the
third-party context, and today, this Court says it is required in the stand-alone
context. However, I struggle to understand why “positive steps” might add value in
stand-alone cases but not in third-party cases. Consider two teachers, both of whom
become separated from their employers due to no fault of their own. One decides to
enter into an agreement with an online tutoring platform and must provide her own
supplies and curriculum. She purchases workbooks, a second monitor, and a tablet
and stylus to have a virtual whiteboard. The other forms Tutoring LLC and
purchases the same items but prints out a poster to hang on the community bulletin
board at her local library to advertise. Let’s say both earn approximately the same
amount, spend about 10 hours per week on the endeavor, and remain able and
available for work. In the Majority’s view, we would need only to look to the
“positive steps” the teacher who formed the LLC took. And under a strict application
of Leary—like the “positive steps” test applied in this case by the Board—the LLC
formation alone may be enough to say that teacher became self-employed. But as
to the teacher who contracts with the online tutoring platform, despite the steps she
took to embark on that venture, we are satisfied to ask, without regard to any
“positive steps,” whether we can say she is customarily engaged in a trade or
business. This scenario bears out the Supreme Court’s wise pronouncement—which
I believe is equally true in stand-alone and third-party cases—“[e]ither a claimant is
self-employed or not. The concept of referring to activities as “positive steps” adds
8
Notably, the claimant in Collins did actually perform services and receive remuneration.
Collins v. Unemployment Comp. Bd. of Rev., 281 A.3d 364, 373 (Pa. Cmwlth. 2022).
RCJ - 14
nothing . . . .” Lowman, 235 A.3d at 298 n.23 (emphasis added). Of course,
application of Section 4(l)(2)(B) to these teachers will differ, as the control factor
will only be at issue for the teacher contracting with the online platform. However,
assuming the control factor is met as to that teacher, it makes no sense to analyze
the substance of their activities any differently when looking to the independence
factor.
Finally, I strongly believe that this Court’s “positive steps” gloss contravenes
the long-standing policy-driven interpretive rules we must apply in the UC context.
Our Supreme Court has elegantly explained that the “policy considerations
underpinning the . . . Law” reflect that it “‘was designed to alleviate the rigors of
unemployment and most specifically to assuage the distress of the individual
unemployed worker.’” Penflex, Inc. v. Bryson, 485 A.2d 359, 365 (Pa. 1984)
(quoting Gladieux Food Servs., Inc. v. Unemployment Comp. Bd. of Rev., 388 A.2d
678, 681 (Pa. 1978)). For that reason, “the Law is to be remedial and broadly
construed so that employees who become unemployed through no fault of their own
are provided with some semblance of economic security.” Darby Twp. v.
Unemployment Comp. Bd. of Rev., 429 A.2d 1223, 1227 (Pa. Cmwlth. 1981)
(emphasis added).
Especially important here is the rule that “eligibility sections . . . must be
liberally interpreted . . . .” Penflex, Inc., 485 A.2d at 365 (emphasis added). Our
Supreme Court has recently reaffirmed that “disqualification provisions should be
narrowly construed, and a claimant must not be denied compensation unless he is
unequivocally excluded by the plain language of these provisions.” Harmon v.
Unemployment Comp. Bd. of Rev., 207 A.3d 292, 307 (Pa. 2019) (citing Penflex,
Inc., 485 A.2d at 365) (internal quotation marks omitted) (emphasis added). So here,
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if two reasonable interpretations of a disqualification provision exist, we must
choose the interpretation that leads to less disqualification, not more.
In reciting and applying these long-standing policy principles, we must not
forget that unemployment compensation benefits are neither a gift from the
taxpayers nor paid for by employers alone. Rather, the UC system creates “insurance
against the burden of indigence resulting from the economic insecurity of
involuntary employment,” Morrison v. Department of Corrections, 659 A.2d 620,
624 (Pa. Cmwlth. 1995), and all employees have funds withheld from their
paychecks to pay into that system.
Finally, practical realities counsel against continued adherence to a post-
Buchanan “positive steps” application. The UC system depends on quick, accurate
determinations of eligibility, and so in this context, there is a heightened urgency
that our rules and guidance be both legally sound and readily applicable by UC
service centers, referees, and the Board. Post-Buchanan “positive steps” does not
pass muster when we think about it through this lens of administrability. The early
“positive act” cases provided a readily administrable rule: one “step,” like
incorporation, leads to ineligibility. However, the Majority does not seem to truly
endorse that harsh but easily applied test, and Buchanan certainly, at the very least,
called it into question. See Precht, __ A.3d at __, slip op. at 12 n.13 (“This Court
acknowledges that incorporating is only one of many factors to be considered under
the positive steps test.”).
The tension between Leary and Roberts on the one hand and Buchanan and
Teets on the other generates uncertainty regarding how many steps result in
disqualification, and what kind of steps are enough? These questions invite referees,
the Board, and judges to trade the text of the Law for their subjective determinations
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of whether an individual is truly “self-employed” based on their evaluations of the
“positive steps” the claimant has taken. Indeed, instead of saying the “positive steps”
test adds nothing, it may be more accurate to say it adds something undesirable—
more potential for indeterminacy and unpredictability in a context of a UC system
in which claimants desperately need swift and accurate eligibility determinations.
To sum up, it is apparent to me that “positive steps” emerged, and possibly
was useful, before the courts correctly recognized that Section 4(l)(2)(B) is the test
for determining self-employment in Section 402(h) cases. The plain language of the
Law’s two-part self-employment test provides all we need, even in the stand-alone
context, to determine whether a given claimant is self-employed. Moreover,
Buchanan, when read carefully, evinces a departure from the strict application of the
“positive act” cases leading up to it. Regardless, our Supreme Court has recently
reminded us that we must heed the plain text of the Law, Lowman, 235 A.3d at 298,
and read disqualification provisions narrowly, Harmon, 207 A.3d at 307. Therefore,
in my view, we should not apply “positive steps,” an indeterminate standard of our
own creation, when determining whether a claimant is self-employed, and instead
remain faithful to the text.9
III. Claimant’s Eligibility under Sections 402(h) and 4(l)(2)(B)
Any doctrinal or interpretive disagreements notwithstanding, I cannot agree
with the Majority’s conclusion that Claimant, on the facts found by the Board, is
self-employed, and thus ineligible for UC benefits. First, Section 4(l)(2)(B) directs
9
I agree with Claimant’s artful observation that “positive steps,” which confuses steps to
prepare or develop a potential business, with actually being engaged in self-employment, is
inconsistent with the statutory language and “a superfluous basis to exclude claimants from
eligibility before they have actively engaged in self-employment.” (Claimant’s Reply Br. at 2.)
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us to consider the “services performed . . . for wages.” Here, there are no Board
findings, nor is there evidence of record, that Claimant performed any services
for clients, let alone services for which he received wages. Instead, the Board’s
findings show that Claimant registered a legal entity, EYE C CLEARLY LLC; spent
money on advertising; worked to develop a website; and devoted up to 10 hours a
week to formulating and developing this concept. All the while, Claimant remained
ready and willing to engage in work. While these various steps taken by Claimant
could be viewed as “positive steps” toward self-employment, Claimant did not
achieve or actually engage in said self-employment, which is what is disqualifying
under the plain text of Section 4(l)(2)(B). Because I read Section 4(l)(2)(B) to
require services performed in exchange for money for a claimant to be considered
self-employed, I would, on that basis alone, conclude that Claimant was not self-
employed, and therefore, not ineligible for benefits.
The Majority posits
remuneration cannot be the test in a stand-alone context because
otherwise an individual could receive UC benefits, notwithstanding
the amount of time he spent operating his independent business and
the positive steps he took in furthering his business, thereby being
qualified for UC benefits and self-employed at the same time.
Precht, __ A.3d at __, slip op. at 11 (emphasis added).10 See also Precht, __ A.3d
at __ n.11, slip op. at 11 n.11 (emphasizing similar concerns). First, quite simply,
remuneration can be, and is part of the test, because the plain text of Section
4(l)(2)(B) ties self-employment to remuneration.11 However, that hypothetical also
10
The Majority’s hypothetical also reveals what common sense, and the statutory text,
would confirm: in this context, we are worried about a business that is actually operating and a
claimant furthering that operating business—not a business that is a mere potentiality.
11
Recall both the control and independence factors’ use of “such services,” a cross-
reference to “[s]ervices performed by an individual for wages.” 43 P.S. § 753(l)(2)(B).
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ignores a key qualification claimants must satisfy to be eligible: ability and
availability for work under Section 401(d)(1). 43 P.S. § 801(d)(1). Our UC system
makes benefits contingent on a claimant being, in part, available for work because
it does not provide benefits to those claimants who are “effectively remove[d] []
from the labor market.” Rohde v. Unemployment Comp. Bd. of Rev., 28 A.3d 237,
243 (Pa. Cmwlth. 2011) (quoting Harwood v. Unemployment Comp. Bd. of Rev.,
531 A.2d 832, 826 (Pa. Cmwlth. 1987)). Thus, the Majority’s statement that if
remuneration forms part of the test, a claimant could spend an unlimited amount of
time on his business is not true because we could not say, under Section 401(d)(1),
that the claimant qualified for UC benefits, as he had removed himself from the labor
market by spending all his time on his venture, and thus was not available for paid
employment elsewhere.
Notwithstanding, even if the Majority were correct with respect to its point
about remuneration, in addition to performing services for wages, for an individual
to be self-employed, the individual must be free from the direction and control of
another and be “customarily engaged” in providing those services. 43 P.S.
§ 753(l)(2)(B) (emphasis added). Here, there is no dispute that Claimant was free
from direction and control, thus leaving only an inquiry as to whether he was
“customarily engaged.” Accordingly, the Board’s findings of fact would have to
show that Claimant was “usually, habitually, or regularly employed or involved in
activity.” A Special Touch, 228 A.3d at 503 (internal citation and quotation marks
omitted). In my view, the Board’s findings do not support a conclusion of customary
engagement. Taken alone, creating a website, spending significantly less than full-
time hours per week, and spending money on advertising (about which we have no
additional facts) do not ineluctably lead to a conclusion that Claimant was
RCJ - 19
“habitually . . . employed or involved” in the conduct of a business. A Special Touch,
228 A.3d at 503 (internal citation and quotation marks omitted). Put simply,
developing a not-yet-operational website and some potential advertisements,
without more evidence to tie such action to the provision of services for wages and
establish customary engagement, does not make a claimant self-employed.
The Majority reaches the opposite result with respect to the customary
engagement requirement by straying from the Law’s text and engaging in its own
fact-finding. The Majority points to the Schedule C12 document Claimant attached
to his application to rebut Claimant’s assertion that he never launched his business.
Precht, __ A.3d at __, slip op. at 12. While the Majority correctly notes that the
“[Board] is the ultimate finder of fact . . . ,” id. at __, slip op. at 14 (brackets and
citation omitted), it nonetheless disregards that axiom of appellate review, combing
the Schedule C for additional facts not found by the Board, including specific
expenses Claimant incurred, as well as wages it surmises Claimant paid employees.
Id. at __, slip op. at 12 & nn. 14-16.13 To the extent the Majority believes these facts
12
The Internal Revenue Service (IRS) instructs taxpayers to “[u]se Schedule C (Form
1040) to report income or (loss) from a business . . . .” IRS, 2022 Instructions for Schedule C
(2022), https://www.irs.gov/instructions/i1040sc (last visited Dec. 11, 2023).
13
The Majority explains that its examination of lines of the Schedule C not referenced by
the Board is permissible because of the rule that “[w]here substantial evidence supports the
[Board’s] findings, they are conclusive on appeal.” Precht, __ A.3d at __, n.17, slip op. at 13 n.17
(quoting Sipps v. Unemployment Comp. Bd. of Rev., 181 A.3d 479, 595 (Pa. Cmwlth. 2018)).
However, there is no dispute here that Claimant sustained a business loss, and Claimant has not
challenged that particular factual finding on substantial evidence grounds. If Claimant had claimed
that substantial evidence did not support the Board’s finding that he sustained a $11,473 loss, then
of course, the Court would appropriately turn to the Schedule C as evidence to support that finding,
and if we reasoned the Schedule C provided substantial evidence, that finding would be conclusive.
However, in that scenario, it would not be necessary to look line-by-line, but only to the line where
Claimant reported the total loss. It does not follow from the proposition that substantial evidence
must support a finding of fact that this Court may make its own findings from evidence of record
about which the Board made no specific findings.
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are helpful or necessary to its analysis, it should, as we often do, remand this matter
to the Board for additional findings of fact.
Further, I disagree with the Majority’s finding that Claimant “launched” his
business.14 Looking to the Schedule C and the money Claimant spent, along with
the fact that he had formed an LLC and created a website, the Majority muses that
“[i]t is difficult to fathom how an individual can declare that he sustained an
$11,473.00 loss by expending such a significant sum of money on a business he
merely conceived, yet never launched.” Id. at 11. First, in the abstract, I find it quite
simple to fathom how an individual can sustain a significant loss and have
meaningfully “launched” no business at all. An individual could lose their job, and
that very evening register to form an LLC with the Department of State,15 apply to
receive an Employer Identification Number (EIN) from the IRS,16 and buy thousands
of dollars’ worth of merchandise, all online without leaving their home.
Accordingly, I can conceive of a scenario where a claimant could have sustained a
loss but not have meaningfully “launched” a business. Moreover, the question is not
14
As part of this analysis, the Majority observes that Claimant is not an individual
attempting to earn extra money on the side with a hobby. Precht, __ A.3d at __, slip op. at 13. It
points to testimony, about which the Board made no findings, and in which Claimant explains that
part of his business will be to help people who were happy with his skills as an optician. Id. It
concludes, quoting Collins, Claimant’s business “was not ‘merely a way of turning a hobby into
extra money.’” Id. (brackets and citation omitted). Again, I read no requirement in the Law that
we are to draw the line at whether a claimant’s business stemmed from a hobby. Rather, the
question is whether, hobby or not, we can say a claimant is self-employed by looking to Section
4(l)(2)(B)’s two-part test.
15
Pennsylvania Department of State, Registration Forms, https://www.dos.pa.gov/
BusinessCharities/Business/RegistrationForms/Pages/default.aspx (last visited Dec. 15, 2023)
(“The Bureau highly encourages online filing as the easiest and fastest way to get your documents
processed.”).
16
IRS, Apply for an Employer Identification Number (EIN) Online, https://www.irs.gov/
businesses/small-businesses-self-employed/apply-for-an-employer-identification-number-ein-
online (last visited Dec. 15, 2023).
RCJ - 21
whether the business “launched,” a term nowhere in the Law; the question is whether
a claimant can be considered self-employed under Section 4(l)(2)(B)’s two-part test.
Notwithstanding, on this record, even if it were proper for this appellate court
to go fact-finding line-by-line through the Schedule C, I do not believe it reveals
Claimant “launched” his online business or that this business was not still a
conceived of, but unrealized, idea at the time of the Schedule C’s filing. Importantly,
the Board made no findings as to the part of the Schedule C relating to income.
My review of that document shows there were no gross receipts, no gross profits,
and, ultimately, no income from the business. (Certified Record (C.R.) at 20.) In
fact, the Board explicitly states in its opinion that “[C]laimant has not yet received
any earnings from his business . . . . Rather . . . he communicated his expectation
that his business will be fully operational and profitable.” (Board Op. at 1 (emphasis
added).) There were no findings that there are, or were, employees, or evidence
reflecting what the nature of their employment was. While monies were expended,
there is no indication in this document, and no testimony in the record, explaining
from where the monies expended came or to whom they went. All that is in the
record is Claimant’s statement in his questionnaire that “[he] ha[s] used all savings
to get going”; no evidence challenges this statement. (C.R. at 18 (emphasis added).)
All Claimant did before the Referee was agree that he had filed the Schedule C
showing a business loss and state that the amounts related to “development.” (Id. at
57.) Thus, to the extent Schedule C is even relevant, it does not support the
Majority’s conclusion that Claimant launched his business.17
17
Moreover, as a legal matter, I see no language in Section 4(l)(2)(B) to suggest we should
draw the line at whether a claimant has “launched” a business. As the Lowman Court pointed out:
“Either a claimant is self-employed or not.” Lowman, 235 A.3d at 298 n.23.
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In my view, the Majority’s conclusion of ineligibility does not pass muster
under even the version of “positive steps” explained in Buchanan, Teets, and Collins.
The Majority endorses the Board’s reliance on the facts that Claimant registered an
LLC and spent money on advertising, to argue that Claimant was customarily
engaged in an independent business. Precht, __ A.3d at __, slip op. at 13. However,
in Collins, we said clearly that “incorporation is just one of the non-exclusive
factors” to be considered in determining whether a claimant is engaged in self-
employment, which must be determined by all of the circumstances. 281 A.3d at
374.18 As for Claimant’s advertising, there is no evidence that those expenditures
went to actually advertising his services to the public rather than, for example,
developing advertisements like he was developing the website. It is notable that the
burden was not on Claimant in these proceedings, but on either Employer or the
Department, Lowman, 235 A.3d at 286 n.7, neither of which disputed Claimant’s
eligibility for benefits based on his separation from Employer.19 Thus, even if a
“positive steps” analysis is a part of the test set forth in Section 4(l)(2)(B), I would
not conclude that Claimant was engaged in self-employment.
Finally, I must emphasize two points. I cannot ignore that Claimant was
terminated from his employment during the COVID-19 pandemic. And I cannot
ignore that Claimant’s disqualification from receiving the UC benefits due to him
based on his involuntary unemployment from Employer appears contrary to the
purpose and underpinnings of the Law. Claimant was denied UC benefits at a time
when the “[e]conomic insecurity” was vast and the “burden of indigency” heavy.
18
Notice, too, how Collins’ explicit “all-facts-and-circumstances” approach is decidedly
inconsistent with our pre-Buchanan, strict “positive act” cases like Leary.
19
This raises a concern about whether the Referee and the Board act as truly impartial
adjudicators in these types of proceedings where the Department does not appear to support its
finding that a claimant is ineligible for benefits due to alleged self-employment.
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Section 3 of the Law, 43 P.S. § 752. Nonetheless, because Claimant made efforts
towards realizing his idea of an online optical consulting business, he was found to
be self-employed, and, thus, disqualified from receiving benefits for which he was
otherwise qualified and had paid taxes into the system to receive.
Moreover, while I agree that the Law is not “insurance for individual
business undertakings[,]” Claimant’s unemployment is not the result of his
decision to engage in an “individual business undertaking[,]” which was then
unsuccessful. Precht, __ A.3d at __, slip op. at 15 (quoting Buchanan, 581 A.2d at
1008) (emphasis added in Precht). Rather, Claimant’s unemployment, and resulting
economic insecurity, was due to his losing his job through no fault of his own.20
These circumstances, beyond Claimant’s control, clearly call for an award of
benefits under the Law. See Section 3 of the Law, 43 P.S. § 752 (recognizing the
burden that involuntary unemployment can impose on an unemployed worker and
setting aside monies “to be used for the benefit of persons unemployed through no
fault of their own”). A sad irony of this case is the perverse incentive we create
through our misapplication of “positive steps.” Had Claimant taken a $10,000 trip
to Greece with his savings or spent the 10 hours per week on learning how to fly fish
20
The Majority takes issue with my observation that Claimant lost his job due to no fault
of his own. Precht, __ A.3d at __, slip op. at 2 n.3. The Majority points out that on his internet
initial claims form, in response to the question, “What was the rule you were accused of violating?”
Claimant answered “inappropriate remarks in email.” (C.R. at 9.) The Majority also points out
that in response to the Referee’s question, “And what did [your supervisor] tell you was the reason
for discharge?” Claimant responded, “Email that had disparaging comments about the company.”
(C.R. at 54.) However, immediately thereafter, Claimant’s lawyer asked, “did you disparage the
company in your email?” to which Claimant responded, “no.” (Id. (emphasis added).) In
addition, there was a companion case under Section 402(e) of the Law, 43 P.S. § 802(e)
(disqualifying claimants for “willful misconduct connected to [their] work”), and Claimant was
not found ineligible under Section 402(e). (C.R. at 52, 73, 83.) Accordingly, on the record
before us, I believe my statement that Claimant was out of work due to no fault of his own is
accurate.
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instead of taking a few steps to develop what would just be a side business, he would
have remained eligible.
In sum, on the facts found by the Board, it erred in finding Claimant ineligible
under Section 402(h) as self-employed, as Claimant was not self-employed under
Section 4(l)(2)(B)’s plain language, the “positive steps,” or a combination of the two.
The Majority compounds that error by affirming the Board’s incorrect
determination.
IV. Conclusion
Put simply, because I cannot conclude that the “positive steps” test, as
understood by the Majority, is consistent with the plain text of Section 4(l)(2)(B),
nor that Claimant can be considered self-employed under either approach, I
respectfully dissent.
__________________________________________
RENÉE COHN JUBELIRER, President Judge
Judge McCullough joins in this dissent.
RCJ - 25