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,

RCJ - 15

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

RCJ - 16

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.)

RCJ - 17

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).

RCJ - 18

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.

RCJ - 20

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.

RCJ - 22

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.

RCJ - 23

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.

RCJ - 24

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