IN RE CLAIM OF: GEORGE G. MAY, Appellee
 vs.

BOARD OF REVIEW, ALBERT G. GILES, Administrator, Appellant

C.A. No. 9406
COURT OF APPEALS OF OHIO, NINTH APPELLATE DISTRICT, SUMMIT COUNTY
Slip Opinion
January 9, 1980

APPEAL FROM JUDGMENT ENTERED IN THE COMMON PLEAS COURT SUMMIT COUNTY, OHIO, CASE NO. 78 8 1762

 COUNSEL

 

 JUDGES

VICTOR, P.J., MAHONEY, J., HUNSICKER, J., CONCUR (Hunsicker, J., retired Judge of the Ninth District Court of Appeals, sitting by assignment pursuant to Article IV, § 6(C), Constitution).
 AUTHOR: VICTOR

 OPINION

 

 

 
DECISION AND JOURNAL ENTRY

 

This cause was heard November 26, 1979, upon the record in the trial court, including the transcript of proceedings, and the briefs. It was argued by counsel for the parties and submitted to the court. We have reviewed each assignment of error and make the following disposition:

 

VICTOR, P.J.

 

This appeal from the Court of Common Pleas of Summit County concerns a claim for the payment of unemployment compensation benefits.

 

The claimant, May, after being laid off from his job at Goodyear Tire & Rubber Company filed an application for unemployment compensation with respect to a benefit year commencing November 6, 1977. His first claim for benefits for the week ending November 12, 1977, was allowed as his waiting week. He continued to file claims with respect to the weeks ending November 26, 1977, through February 25, 1978, and received benefits of $ 147.00 for each of those weeks.

 

During each of those weeks he filed a weekly claim form (UC-403C). For the weeks ending November 26, 1977, through February 11, 1978, the claimant answered "No" to the following question:

 

"5. Did you work or were you self employed * * * during the week identified above. If Yes, the Employer's name, dates worked, and gross earnings."

 

For the weeks ending February 18, 1978, and February 25, 1978, the claimant answered "Yes" to the question. He entered his employer's name as "George May." Actually during the entire period claimant was self-employed and doing business as Lumberjack Enterprises. His work consisted of purchasing trees and cutting them up for firewood, and plowing snow. He purchased the equipment for this business in November and sold the firewood commencing in> December. During January, 1978, he also plowed snow. He did not list his business as self-employment until he was under investigation. Upon investigation, he gave an affidavit admitting that he had failed to list his self-employment while seeking unemployment benefits and further stated that he had been working "about 40 hours in all weeks claimed." As the claimant's expenses exceeded his income from the business, claimant believed that he was therefore unemployed.

 

On March 8, 1978, Giles, the Administrator of the Bureau, cancelled claimants unemployment benefits. Claimant requested a reconsideration of that order on March 15, 1978, and after further proceedings, the Administrator held that claimant had made fraudulent representations and affirmed his original order. An appeal was taken to the Unemployment Compensation Board of Review and a hearing was held on May 17, 1978, before a Referee of the Board. The Referee found that claimant was not guilty of any fraud but did declare that claimant's self-employment rendered him ineligible for any benefits. Claimant was ordered to repay all benefits received.>

 

The claimant's request for a further appeal to the Board of Review was denied and thereafter an appeal was taken to the Common Pleas Court of Summit County. That court held in part:

 

"* * * that although appellant was self-employed during the period in issue, there is no evidence that [claimant] was not available for full-time employment while carrying-on his log-cutting and snow-removal endeavors in his spare time, on a part-time basis.

 

"The Court has further found that the Decision of the Board of Review * * * is not supported by the preponderance of reliable, substantial and probative evidence."

 

"* * *."

 

Thus, the Board's decision was reversed and the claimant's application for benefits approved. That order precipitated this appeal.

 

It is the Board's contention that the Common Pleas Court erred:

 

ASSIGNMENTS OF ERROR

 

"I. * * * [I]n reversing the Decision of the Board of Review in that the claimant was not unemployed and therefore not entitled to benefits.

 

"II. * * * [I]n reversing the Board of Review in that it misallocated the burden of establishing unemployment benefit rights.

 

"III. * * * [I]n reversing the Board of Review's Decision that the claimant was not available for work.

 

"IV. * * * [I]n applying a standard of review different from that mandated by Section 4141.28(O), Ohio Revised Code."

 

I

 

R.C. 4141.35 provides that the administrator may cancel benefits for misrepresentation, fraudulent or otherwise. Claimant's statement on Bureau Form UC-403C that he was not self-employed was a misrepresentation despite the lack of any fraudulent intent. The rendering of services regardless of whether income is received constitutes employment. Elrace Ross v. Board of Review, C.C.H. Unemp. Ins. Rep. 1963-1971 Transfer Binder, Ohio P8454 (1965) and Curtis T. Sink v. Bureau of Unemployment Compensation, C.C.H. Unemp. Ins. Rep., 1948-1959 Transfer Binder, Ohio P8316 (1952).

 

A claimant who is working is not unemployed and hence not fully eligible for unemployment benefits. R.C. 4141.01 (M) provides:

 

"An individual is 'totally unemployed' in any week during which he performs no services and with respect to such week no remuneration is payable to him."

 

Hence, if a claimant either performs services or receives remuneration, he is not unemployed. See Dorsey W. Richards v. Ohio Bureau of Employment Services, No. 37419, Cuyahoga County, unreported, May, 1978. See also Carroll v. Giles, No. C.A. 1743, Richland County, unreported, 1978, a case similar to the instant case wherein the claimant while drawing unemployment compensation started a business of his own called Carroll Auto Sales. Carroll contended he was not self-employed apparently because he received no income from the business. The court held that Carroll was not entitled to unemployment compensation even though he continued to seek other employment during the period he was operating his own company.

 

The complainant's failure to report his self-employment on claim form UC-403C was a misrepresentation and a violation of R.C. 4141.35. The first assignment of error is well taken.

 

II and III

 

A claimant for unemployment compensation has the burden of proving he is entitled to unemployment compensation benefits. Shannon v. Bureau of Unemployment Compensation, 155 Ohio State 53 (1951). The court, however, while recognizing that the claimant was self-employed held that there "was no evidence that [claimant] was not available for full time employment." This issue becomes important only if it is first determined that the claimant is unemployed. The court by treating the two issues as one and searching the record for evidence of non-availability placed the burden of proof upon the Bureau, contrary to the case law and to R.C. 4141.29(A) which provides in part:

 

"No individual is entitled to a waiting period or benefits for any week unless he:

 

"(1) Has filed a valid application for determination of benefit rights in accordance with section 4141.28 of the Revised Code;

 

"(2) Has made a claim for benefits in accordance with section 4141.28 of the Revised Code;

 

"(3) Has registered at an employment office or other registration place maintained or designated by the administrator of the bureau of employment services. Registration shall be made in person or in writing in accordance with the time limits, frequency, and manner prescribed by the administrator.

 

"(4)(a) Is able to work and available for suitable work and is actively seeking suitable work * * *."

 

The claimant's statement in his affidavit that he had been working 40 hours per week was sufficient to support the finding of the Board of Review that claimant was not available for work. Claimant's testimony before the Referee that he was not self-employed 40 hours per week and was available at all times, presented a credibility issue for the Referee. Obviously he chose to believe claimant's first assertion. This he had a right to do and the Court of Common Pleas as a reviewing court cannot substitute its judgment for that of the Referee.

 

We sustain assignments of error II and III.

 

IV

 

In light of our previous discussion, the issue raised by this assignment of error is moot.

 

The judgment of the Court of Common Pleas is reversed and final judgment entered for the Bureau of Employment Services.

 

-

 

The court finds that there were reasonable grounds for this appeal.

 

We order that a special mandate, directing the Summit County Common Pleas Court to carry this judgment into execution, shall issue out of this court. A certified copy of this journal entry shall constitute the mandate, pursuant to App. R. 27.

 

Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App. R. 22(E).

 

Costs taxed to appellee.

 

Exceptions.