SAMUEL S. BELKIN, APPELLANT
 vs.

BOARD OF REVIEW, OHIO BUREAU OF EMPLOYMENT SERVICES, ET

AL., APPELLEES

No. 40365
COURT OF APPEALS OF OHIO, EIGHTH APPELLATE DISTRICT, CUYAHOGA COUNTY
Slip Opinion
February 7, 1980

APPEAL FROM COMMON PLEAS COURT, No. 966,917

 COUNSEL

 

 JUDGES

KRUPANSKY, J., JACKSON, P.J. and PRYATEL, J. CONCUR.
 AUTHOR: KRUPANSKY

 OPINION

 

 

 
JOURNAL ENTRYOPINION

 

KRUPANSKY, J.:

 

This cause came on to be heard upon the pleading and the transcript of the evidence and record in the Common Pleas Court, and was argued by counsel; on consideration whereof, the court certifies that in its opinion substantial justice has not been done the party complaining, as shown by the record of the proceedings and judgment under review, and judgment of said Common Pleas Court is reversed. Each assignment of error was reviewed by the court and upon review the following disposition made:

 

On August 27, 1976, Samuel S. Belkin, appellant herein, applied to the Ohio Bureau of Employment Services for a determination of his rights to unemployment benefits. On September 21, 1976, appellant was notified his claim was disallowed because he failed to meet the requirements of R.C. 4141.01(R) as to the validity of his application, in that he was not unemployed.

 

On September 22, 1976, appellant requested reconsideration of that determination, and on October 19, 1976 the decision of September 21, 1976 was affirmed by the Administrator. Appellant filed a timely appeal to the Board of Review from the Administrator's decision and the matter was heard on December 7, 1976.

 

The testimony at the hearing established the following facts:

 

Appellant was an officer and shareholder of Cleveland Diversified Construction Company since its incorporation in October, 1975. (Tr. 3)

 

Appellant's duties as an officer of the corporation included processing all Unemployment Service, Workmen's Compensation, and Internal Revenue Service matters, handling the payroll, doing the company's accounting, and procuring work for the corporation. (Tr. 5) Appellant never received any wages for his services as an officer of the corporation. (Tr. 11) The business address of the corporation is the same as that of appellant's residence. (Tr. 4)

 

The corporation's business was carpentry type work. (Tr. 4) In late 1975, the corporation obtained a carpentry subcontract from Transwestern Construction Company and did carpentry work on a residential construction project. During the duration of this relationship with Transwestern, Cleveland Diversified Construction Company employed six carpenters, one of them being appellant. Cleveland Diversified was paid by Transwestern for work done, and then issued salaries to the six men. For his services as carpenter and foreman, appellant received $ 10 per hour, or $ 400week. The other five carpenters working for Cleveland Diversified received $ 9 per hour as wages.

 

The work for Transwestern terminated in August, 1976. At that time, appellant having been unable to procure further work for the corporation, all six carpenters, including appellant, were laid off the job and removed from the corporation's payroll.

 

On January 6, 1977, the Board of Review affirmed the Administrator's decision on reconsideration denying appellant's claim for unemployment benefits. On February 14, 1977, the Board of Review disallowed appellant's application for further appeal. Appellant appealed to the Court of Common Pleas pursuant to R.C. 4141.28(O), which, on January 2, 1979, affirmed the decision of the Board of Review.

 

On appeal to this court, appellant assigns the following as error:

 

APPELLANT, SAMUEL S. BELKIN (HEREINAFTER REFERRED TO AS "BELKIN") ASSIGNS AS ERROR THAT IN CONSIDERING HIS APPLICATION FOR UNEMPLOYMENT BENEFITS THE OHIO BUREAU OF EMPLOYMENT SERVICES FAILED AND REFUSED TO FIND BELKIN ELIGIBLE FOR BENEFITS IN THAT HE WAS PARTIALLY UNEMPLOYED AS THAT TERM IS DEFINED IN OHIO REVISED CODE SECTION 4141.01 (N) AND THUS ENTITLED TO BENEFITS PURSUANT TO OHIO REVISED CODE SECTION 4141.01 (R). BELKIN FURTHER ASSIGNS AS ERROR THAT IN AFFIRMING THE DECISION OF THE BOARD OF REVIEW, THE COMMON PLEAS COURT PERPETUATED THE ERRONEOUS FINDINGS AND APPROACH OF THE ADMINISTRATIVE AGENCY.

 

Appellant argues the trial court erred in affirming the decision of the Board of Review because that decision was contrary to the unemployment compensation statutes in that it failed to find appellant was partially unemployed and thus entitled to benefits. We find merit in this argument.

 

As pointed out by appellee, the authority of the Common Pleas Court, and this court on appeal, in an appeal from a decision of the Unemployment Compensation Board of Review under R.C. 4141.28 is limited to a determination of whether such decision was unlawful, unreasonable, or against the manifest weight of the evidence. Kilgore v. Board of Review (1965), 2 Ohio App. 2d 69, Syl. 1.

 

The facts of the instant case are not in dispute. In addition to those set forth previously in this opinion, the findings of fact in the decision of the Board of Review included the following:

 

"During claimant's base period which is comprised of the 52 calendar week period beginning August 10, 1975, and ending August 7, 1976, claimant earned $ 12,600.00 performing services for Cleveland Diversified Construction Co., Inc. Claimant received a wage rate of $ 10.00 an hour. All his employees and supervisors received $ 9.00 an hour. Claimant received his last paycheck from Cleveland Diversified Construction Co., Inc. on August 26, 1976, in the amount of $ 400.00.

 

"Since August 27, 1976, claimant has devoted at least 40 hours per week in his efforts to procure additional work for Cleveland Diversified Construction Co., Inc. by contacting various contractors, scanning local newspapers, and by making telephone calls to prospective general contractors. Claimant has also completed all taxation and payroll forms and statements for Cleveland Diversified Construction Co., Inc."

 

Appellant does not dispute any of the factual findings of the Board of Review, but rather disputes the Board's application of the law to those facts. Specifically, appellant disputes the Board's conclusion that he was not "unemployed" as required by R.C. 4141.01(R).

 

That section of R.C. 4141.01(R) relevant to the matters herein reads as follows:

 

"* * * Any application for determination of benefit rights made in accordance with section 4141.28 of the Revised Code is valid if the individual filing such application is unemployed, has been employed by an employer or employers subject to sections 4141.01 to 4141.46 of the Revised Code, in at least twenty calendar weeks within his base period, and has earned remuneration of at least twenty dollars during each of such twenty weeks. Within the meaning of the preceding sentence, an individual is 'unemployed,' if, with respect to the calendar week in which such application is filed he is 'partially unemployed' or 'totally unemployed' as defined in this section, or if, prior to filing his application, he was separated from his most recent work for any reason which terminated his employee-employer relationship, or was laid off indefinitely or for a definite period of seven or more days." (Emphasis added)

 

Therefore, appellant's application for benefits was valid if he was either totally or partially unemployed at the time of filing. Since the only issue raised by appellant on appeal is the Board's failure to find he was partially unemployed, we will limit our analysis and opinion to that issue. Thus, we are not concerned herein with the propriety of the Board's ruling vis-a-vis the issue of total unemployment.

 

The statute defines partial unemployment as follows:

 

Revised Code 4141.01:

 

"(N) An individual is 'partially unemployed' in any week if, due to involuntary loss of work, the total remuneration payable to him for such week is less than his weekly benefit amount."

 

The facts in the instant case clearly indicate that due to the completion of the carpentry subcontract between Cleveland Diversified Construction Company and Transwestern Construction Company and due to appellant's inability to procure additional work for Cleveland Diversified, appellant suffered an involuntary loss of work as of August 27, 1976. Because of this loss of work, the remuneration payable to appellant for his services to the corporation dropped from $ 400week to no remuneration at all.

 

The statement found in the referee's conclusions, part of the announced decision of the Board of Review, to the effect that when he filed his application for benefits appellant was legally entitled to a weekly salary of $ 400 as president and treasurer of the corporation is unsupported by the record and against the manifest weight of the evidence. The record indicates appellant never had any wages due him nor were any wages ever paid to him for his services as an officer of the corporation, this fact being established by appellant's unrebutted testimony. If the referee had cause to dispute this fact, whether pursuant to an investigation of appellant's finances, an examination of the corporate books and records, or testimony of other witnesses, he should have stated his reasons on the record and supported same.

 

Thus, pursuant to R.C. 4141.01(N), appellant was partially unemployed at the time he filed his application for unemployment benefits. We therefore find the decision of the Board of Review that appellant was not "unemployed" pursuant to R.C. 4141.01(R) to be unlawful, unreasonable, and against the manifest weight of the evidence.

 

The decision of the Court of Common Pleas affirming the decision of the Board of Review is hereby reversed. The decision of the Board of Review is hereby reversed and vacated with respect to its determination that appellant was not unemployed when he filed his claim for benefits and, therefore, not eligible for unemployment benefits pursuant to the statute. This cause is remanded to the Board of Review for further proceedings consistent with this opinion.

 

This cause is remanded to the Common Pleas Court for further proceedings according to law.

 

It is, therefore, considered that said appellant recover of said appellees his costs herein.

 

It is ordered that a special mandate be sent to said Court to carry this judgment into execution.

 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.

 

N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run.

 DISPOSITION
 

Reversed and Remanded