IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Mariana Collins , : Petitioner :

: v. : No. 754 C.D. 2021

: Submitted: February 11, 2022 Unemployment Compensation : Board of Review , : Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE ELLEN CEISLER, Judge HONORABLE STACY WALLACE, Judge

OPINION BY PRESIDENT JUDGE COHN JUBELIRER FILED: August 9, 2022 Mariana Collins (Claimant) , pro se, petitions for review of the May 27, 2021 Order of the Unemployment Compensation (UC) Board of Review (Board), which
affirmed a Referee’s Decision finding Claimant ineligible for UC benefits pursuant to Section 402(h) of the UC Law (Law) , 1 43 P.S. § 802(h )

. On appeal, Claimant
argues that her actions in setting up a limited liability company ( LLC ) to sell items , which she created as a hobby, on the internet to make extra money was insufficient
to constitute self

- employment under Section 4( l )(2)(B) of the Law, 43 P.S. § 753( l )(2)(B) , so as to render her ineligible for the UC benefits she had been receiving from a prior position

. Because we conclude that Claimant’s conduct did not rise to customary involvement in an independently established business as a

m atter of law , we reverse

.

1 Act of December 5, 1936, as amended , 43 P.S. § 802(h) (providing , in relevant part, that “[a]n employe shall be ineligible for compensation for any week” “in which [the employe] is engaged in self

- employment”).2

I. BACKGROUND Claimant filed a claim for UC benefits on May 6 , 2020 , based on a separation from her position as an audiologist with Pinnacle ENT Associates LLC (Pinnacle), with her last day of work being January 30, 2019

. (Certified Record (C.R ) Item 2 at
1

- 2 .) Claimant previously received UC benefits based on her separation from Pinnacle. (C.R. Item 6 at 6

- 7.) In a s upplemental i nformation form , titled “Owner Business,” Claimant indicated that she opened an online busin ess on March 9, 2020,
that sold goods and services and advertised online beginning May 6, 2020 . ( C.R.
Item 2 at 4

- 5 .) In a second supplemental information form, Claimant indicated that
she had previously worked part time as an adjunct instructor for West Chester University (WCU) , but her services were not renewed as she was “[n]ot needed.” ( Id. at 7.)
A UC Service Center issued a notice of determination , finding Claimant ineligible for benefits under Section 402(h) of the Law based on the conclusion tha t Claimant engaged in self

- employment

. ( C.R. Item 5 at 1. ) Claimant appealed,

st ating that she

filed for [the] initial [UC] benefits on February 1, 2019. At that time, [she] informed the state of Pennsylvania that [she] would be working at WCU part time. It was established that during the fiscal year of 2018 [she] earned approximately $90,000 in gross salary from [Pinnacle] as [it] was [her] main employer. [She] received [UC] benefits . . . until the funds for 2019 were exhausted. . . . The letter of exhaustion stated that if [she] w[as] still unemployed in 2020 that after February 1[,] 2020 [she] would be able to claim [UC] benefits again from [Pinnacle]. WCU was never [her] main employer.

(C.R. Item 6 at 6

- 7 .) Claimant further explained that, due to a non

- compete clause,
she could not work within a 30 mile radius of any Pinnacle office and that3

[i] n the interim of trying to find adequate employment [she] turned [her] hobby into a side business. [She] followed all the appropriate laws to form the business as [she] underst [oo] d the need to pay appropriate taxes and [her] online store opened on March 9, 2020. It has brought in a whopping $500. It is registered as an LLC because [she] sell [s] bath teas and should someone have an allergic reaction and decide to
sue [her] , [ s he] didn ’ t want to lose [her] house because [she] ha [s] no money otherwise to pay. [She] do [es] not receive a salary from this business. It is not successful by any means. It is merely legal on paper and while filling out [her] unemployment [she] wanted to be fully honest as [she] was when [she] filled out the information while working at WCU

.
( Id. ) A Referee held a hearing , at which Claimant testified regarding her unemployment , her prior receipt of UC benefits, the expiration of those benefits, her
online business selling jewelry , the steps she took to begin that business , and her attempts to find a position as an audiologist . ( See C.R. Item 10 (Tran script) at 3

- 6 .)
No representative from either Pinnacle or the Department of Labor and Industry appeared in opposition to Claimant’s appeal

. Based on the testimony, t he Referee made the following Findings of Fact:

1. On March 9, 2020, the Claimant star ted her own business.

2. The Claimant utilized the Etsy online store to sell pieces of jewelry which the Claimant made.

3. Etsy deducted a fee to use [its] platform from the price of the jewelry.

4. The Claimant sold four pieces of jewelry.

5. The Claimant set the price of the items.

6. The Claimant formed a [n LLC] for her business named [] Ceiba Tree LLC.4

7. The Claimant registered her business

. . . with the Department of State [(Department)] in the Commonwealth of Pennsylvania.

8. The Claimant also opened a bank account for the business. 9. The Claimant was at risk of earning a profit or sustaining a loss based on the performance of her business. 10. The Claimant is trained as an Audiologist but was not looking for full

- time work in h er field beca u se of a restrictive covenant placed on the Claimant by her prior Employer [, Pinnacle , ] which did not allow her to work in her field within 30 miles of any of [Pinnacle’s] business locations, or she would face legal action.

( Referee Decision, Findings of Fact (FOF) ¶¶ 1

- 10 .) 2 T he Referee affirmed the UC Service Center’s finding that Claimant was ineligible for benefits on the basis that Claimant engaged in self

- employment by “engag[ing] in positive acts to establish an independent business v enture

. ” ( Referee Decision at 2 .) Those steps, according to the Referee, included Claimant’s act s of incorporating her business, registering the
business with the Department , opening a bank account for the business , and selling four pieces of jewelry at a price that she set . ( Id. ) The Referee concluded that, although the business had not yet earned a profit, “Claimant was an unemploye d businessperson,” and the Law was not intended “to compensate individuals who fail
in their business ventures .” ( Id. at 2

- 3.) Claimant appealed to the Board, which concluded that the Referee properly
held that Claimant engaged in self

- employment through her online business and was , therefore , ineligible for UC benefits. ( Board Order

. ) 3 Accordingly, the Board

2 The Referee’s Decision is found in the Certified Record at Item 11. 3 The Board’s Order is found in the Certified Record at Item 19.5

adopted and incorporated the Referee’s findings and conclusions and affirmed the Referee’s Decision. ( Id. ) Claimant now petitions this Court for review

. 4

II. DISCUSSION
A. Parties’ Arguments Claimant argues that the Board erred in determining that she engag ed in self

employment because she “was not customarily engaged in an independently established trade, occupation, profession[,] or business.” (Claimant’s Brief (Br.) at 11.) Claimant compares this matter to Buchanan v. Unemployment Compensation Board of Review , 581 A

. 2d 1005 (Pa. Cmw lth. 1990), asserting that she is like the
claimant in Buchanan who m this Court determined was not engaged in the business of selling jewelry on a permanent basis where the claimant set up a booth at a weekly
flea market and spent his own money to purchase tools and supplies . Claimant
contends her activit ies on Etsy should not render her ineligible for UC benefits because, although she register ed her business as an LLC and set up a bank account, selling only four necklaces as a way to earn extra money on t he side, without any intent to make a living from that activity , does not rise to the level of being customarily engaged in the business

. Claimant alternatively requests that the matter
be remanded because the Referee did not sufficiently develop the reco rd and asserts that the Board did not address the legal arguments she raised on appeal. The Board responds that the law is well settled that UC benefits may not be used “to fund an individual’s start up business” and that “[w]hen an individual takes

4 “ Our review of the Board ’ s decision is limited to determining whether an error of law was committed, [whether] constitutional rights were violated, or [wh ether] necessary findings of fact were supported by substantial evidence. ” Doyle v. Unemployment Comp. Bd. of Rev. , 58 A.3d 1288, 1291 n.2 (Pa. C mwlth. 2013)

.6

positive steps to start their own business, they become self

- employed and ineligible
for such benefits.” (Board’s Br. at 4.) Relying on Leary v. Unemployment Compensation Board of Review , 322 A.2d 749 (Pa. Cmwlth. 1974), and Salamak v. Unemployment Compensation Board of Review , 497 A.2d 951 (Pa. Cmwlth. 1985) , the Board asserts that the date of incorporation or registration is th e date a claimant’s
self

- employment begins because , “ while

. . . not the final act in establishing an independent business enterprise, it [is] clearly a positive act towards that end. ” ( Id. at 7.) Further, the Board con tends, this Court has found a claimant is engaged in
self

- employment and ineligible for benefits where the claimant establishe s and advertises a new business and actively perform s services for th at business

. ( Id. at 8 (citing Balmer v. Unemployment Comp

. Bd

. of Rev

. , 368 A.2d 1349 (Pa. Cmwlth. 1977) ).) T he Board argues that Claimant ’s actions reflect her establishing a new business and performing services in an attempt to earn a profit and constitute sufficient “positive steps toward establishing an indep endent business” that render
Claimant ineligible for UC benefits. ( Id. at 9.) T he Board asserts that Claimant’s
reliance on Buchanan is misplaced because, there, the claimant did not establish a corporation for the purpose of selling jewelry , which this Court has used to distinguish Buchanan in two un reported opinion s

. 5 ( Id. at 10

- 11 (citing Coleman v.
U nemployment C omp. B d. of R ev. (Pa. Cmwlth. , No. 210 C.D. 2016, filed Dec. 21, 2016), and Banyas v. U

nemployment C omp. B d. of R ev. (Pa. Cmwl th. , Nos. 521 &
522 C.D. 2009 , filed Oct. 14, 2009) ).) The Board further asserts that Buchanan is distinguishable because Claimant took steps to establish her business beyond just selling her merchandise.

5 Pursuant to Pennsylvania Rule of Appellate Procedure 126(b), Pa.R.A.P. 126(b), and Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a) , an unreported opinion may be cited as persuasive.7

As to Claimant’s alternative arguments , the Board posits that Claimant waived any argument regarding the Referee ’s alleged fail ure to develop the record by not rais ing that issue on appeal to the Board. Further, because she did not raise the issue of the Board’s failure to address her legal a rguments in the Statement of the Questions Involved portion of her brief , the Board asserts that Claimant also waived this issue. (Board’s Br. at 1 2 .)

B. Analysis
Under Section 402(h) of the Law, a claimant is ineligible for UC benefits for any week “[i]n which [s] he is engaged in self

- employment.” 43 P.S. § 802(h)

. Whether a UC claimant is self

- employed and ineligible for benefits is a question of law subject t o plenary review by this Court. Frimet v. Unemployment Comp. Bd. of
Rev. , 7 8 A. 3 d 21 , 25 (Pa. Cmwlth. 2013 )

. In considering th is legal issue, we must remember “ the . . . Law is a remedial statute, and . . . its provisions must be liberally construed and broadly construed so that its objectives (insuring that employees who become unemployed through no fault of their own are provided with some
semblance of economi c security) may be completely achieved.” A Special Touch v. Dep’t of Lab. & Indus. , 228 A.3d 489, 503 (Pa. 2020) (quoting Wedner v. Unemployment Comp. Bd. of Rev. , 296 A.2d 792, 796 (Pa. 1972)).
The Law “ does not define the term ‘ self

- employment .’ Yet, the determination
that an individual is self

- employed is highly consequential ” because an “ individual who is otherwise eligible for benefits due to separation from employment receives no benefits for any week of self

- employment .” Lowman v. Unemployment Comp. Bd. of Rev. , 235 A.3d 278, 281 (Pa. 2020). That is the situation here

– Claimant was eligible for UC benefits based on her separation from Pinnacle, but the finding of
self

- employment rendered her ineligible. “Whether an individual is self

- employed ,8

as the term is used in [Section 402(h)] is to be determined through application of the control and independence factors in Section [4]( l )(2)(B)” of the Law, which defines the term “employment.” Id. at 29 8

. In relevant part, S ection 4( l )(2)(B) provides : 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 department that

-- (a) such individual has been and will continue to be free from control or directi on 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)

. “The Act 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.” Lowman , 235 A.3d at 29 7 (emphasis added)

. This test is often referred to as a two

- prong test. The legal determination of whether
a claimant is self

- employed is to be made on th e unique facts of each case , with no one circumstance being dispositive. Id. at 289, 302

- 03 ; Humanus Corp. v. Unemployment Comp. Bd. of Rev. (Pa. Cmwlth., No. 307 C.D. 2019, filed May 13, 2020), slip op. at 1 1

. As to the first prong , which requir es that the individual be “ free from control
and direction , ” “the evidence must show that the claimant is ‘not subject to control or direction’” of another person or entity. Lowman , 235 A.3d at 300 (quoting 43 P.S. § 753( l )(2)(B)(a) ) . In situations where t he disqualifying self

- employment is due

to a claimant allegedly having started their own business, the control factor is necessarily satisfied. Buchanan , 581 A.2d at 1007. For example, here , Claimant’s testimony established that she had control over the online business and “ ha [d]9

acquired the traditional trappings of a business .” Lowman , 235 A.3d at 302. Accordingly, Claimant was “ free from control or direction over the performance of
such services . . . in fact.” 43 P.S. § 753( l )(2)(B).
As to the sec ond prong , which requir es that the individual be “customarily engaged ” “ in an independently established trade, occupation, or business ,” the Supreme Court explained that the se are separate inquir i es and that both must be
satisfied to show that the claimant is engaged in self

- employment

. Lowman , 235
A.3d at 300

. T he “independently established” component shares the factors related
to the control factor , as well as additional consideration s. Id. at 302 (citing Danielle Viktor, Ltd. v. Dep ’ t of Lab. & Indus., Bureau of Emp. Tax Ops. , 892 A.2d 781, 797

- 98 ( Pa. 2006) ). 6 Again, i n situations where , as here, the disqualifying self

employment is due to the claimant allegedly having started their own business, the independently established part of the second prong is satisfied

. In addressing t he “customarily engaged” component, the Supreme Court has
looked t o the definition s of “customary” as meaning “commonly practiced, used, or observed,” and “engage” as meaning “to employ or involve oneself; to take part in;

6 The se considerations include: “(1) whether the individual is able to work for more than one entity; (2) whether the individual depends on the existence of the entity for ongoing work; and (3) whether the individual was hired on a job

- to

- job basis and could r efuse any assignment.” Lowman , 235 A.3d at 302. The Supreme Court cautioned , however, that this list is not exclusive and no one factor is dispositive , explaining that
[w]hile the independence factor may be established through evidence that the claima nt has acquired the traditional trappings of a business, e.g. , a license, a lease, an ownership interest in the assets of a trade or business, business cards, clients, advertising, and/or evidence related to the other factors considered by this Court in Danielle Viktor , . . . no one circumstance is dispositive, and each case must be addressed on its unique facts.

Id. at 302

- 03.10

to embark on.” Id. at 301 (quoting Staffmore, LLC v. Unemployment Comp. Bd. of
Rev. , 92 A.3d 844, 847 (Pa. Cmwlth. 2014) (internal quotation marks omitted) )

. Based on those definitions, the Supreme Court stated that “the fact that an unemployed person . . . accept[s] an occasional offer of work is simply not enough
to demonstrate that said individual is customarily engaged in an independently established trade, occupation, profession or business.” Id. (quoting Silver v. Unemployment Comp. Bd. of Rev. , 34 A.3d 893, 898 (Pa. Cmwlth. 2011) ) (emphasis added) . Thus, relevant to determining whether C laiman t is customarily engaged under Section 4( l )(2)(B) of the Law is an examination of whether she engage d in the alleged disqualifying work activity only occasiona l l y

. Further, the Supreme Court advised that th e analysis should focus on the conduct that actually occurred, not hypothetical or theoretical conduct

. Lowman , 235 A.3d at 303. The Court stated:
[i] n the context of determining whether an individual is engaged in self

employment and therefore, ineligible for benefits, an analysis using Section [4] ( l )(2)(B) does not evaluate what a claimant could do, but what [s] he has done and/or is doing in terms of providing personal services for remuneration. Looking at a claimant ’ s real

- time activities through the lens of Section [4] ( l )(2)(B) avoids speculation based on hypothetical considerations and aids in evaluating a claimant ’ s actual status for eligibility purposes.

Id. Therefore, in analyzing whether Claimant’s conduct constitutes self

employment, we must examine her real

- time activity and avoid hypothetical speculation about what activities she could have engaged in

. After setting forth the above test in Lowman , the Supreme Court recognized
that Lowman was a situation involving independent contractors, which differ ed from instances “where the personal services are performed by an individual in a stand

-11

alone conte x t,” such as the present case . 235 A.3d at 298 & n.24 . In these latter cases, the “positive steps” analysis has traditionally been performed, 7 and the Supr eme 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) , ” as had
been done in Buchanan and Teets v. Unemployment Compensation Board of Review , 615 A.2d 987 (Pa. Cmwlth. 1992). Id. at 298 n.24 (emphasis added). Therefore, as the Supreme Court did not disturb our precedent applying the positive steps analysis as a part of the two

- prong approach discussed in Lowman , we apply that approach
here

. Claimant like n s her situation to those in Buchanan and Teets and contends that, as in those cases, her actions do not constitute self

- employment. In Buchanan , the claimant was discharged from his position and, while receiving UC benefits, expended $2,000 on spools of g old chain to make jewelry to sell at a flea market. The claimant was found ineligible for benefits on the basis that he was self

employed, but this Court reversed. We held that there was no dispute that the control prong was satisfied because the claiman t was in total control of his selling of jewelry
at the flea market. Buchanan , 581 A.2d at 1007. Turning to whether the claimant customarily engaged in an independently established business, we concluded he was not so engaged, reasoning:
[t] he claimant in this case did not form a corporation for the purpose of selling jewelry. He did not advertise, list a telephone number for this alleged business nor did he obtain insurance for his activity. The claimant testified at the hearing before the referee tha t he had no intent to sell jewelry at the flea market on a permanent basis; the activity

7 The Supreme Court rejected the use of the “positive steps” analysis in independent contractor situations because “Section [4]( l )(2)(B) requires a structured two

- factor analysis of a claimant’s personal services whe re they are performed within the context of a work relationship with a third party.” Lowman , 235 A.3d at 298 & n.23

.12

was one on the side to make some extra money

. If the facts of this case had been that the claimant was selling jewelry on a more consistent basis , or that he was movi ng from flea market to flea market or was selling also out of his home, we would be more apt to find that he had embarked on an independent business venture. We decline, however, to find that the act of setting up a booth at a weekly flea market constitut es customary engagement in an independently established trade, occupation, profession or business under Section 4( l )(2)(B) of the Law.

Buchanan , 581 A.2d at 1009. Thus, for the purposes of customary engagement , we considered whether: the claimant had incorporated or registered the business; the
claimant had advertised; the claimant had obtained insurance; the intent of the claimant to engage in the business on a permanent basis or simply to use the business

as a means to make money on the side; the degree to which the claimant was actively engaged in furthering the business , such as selling occasionally at a single flea
market ; and whether the claimant was using his own home or property to operate the
busines s. In Teets , we applied Buchanan to a different factual scenario and reached the
same result . There, the claimant was separated from her 24

- year employment as an executive and applied for UC benefits. Thereafter, the claimant attended a skincare sales p rogram meeting , signed an agreement to be a distributor, and paid approximately $250 for a sales kit. The claimant engaged others to join the program and sell items, but , ultimately, received less than six dollars as commission. After
the claimant was fo und ineligible for benefits due to being self

- employ ed and the Board affirmed, this Court reversed. In doing so, we disagreed with the referee’s conclusion that, while the claimant’s activity would be a “side

- line activity” under the Law, the fact that th e claimant did not begin the activity until after she was laid
off meant she was self

- employed. Teets , 615 A.2d at 989. W e stated that “ the fact13

that an activity which may generate a limited amount of income [, which is a side

line activity,] is not undertaken while a claimant is still employed does not automatically make [that activity] ‘self

- employment .’” Id. Instead, the claimant’s activities had to be reviewed to see if they established that the claimant was

custom arily engaged. After comparing the facts in Teets to those in Buchanan , we determin ed that the Teets’ claimant was not customarily engaged in an independent
trade because her activities amounted only to those of a “side [

- ] line activity

. ” Id. at 990. W e explained that “[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 spen t only $250 on a sales kit
, ” and the “[c]laimant receiv ed less than $6 in income from
her activit ies.” Id. Accordingly , in addition to the factors in Buchanan , we also considered the amount of money a claimant put s into the activity and the compensation a claimant receive s from the activity to determine whether a claimant was customarily engaged in an independently established business. Applying those
factors in Teets , we held that, as a matter of law, the claimant “was not engaged in
self

- employment so as to disqualify her fro m receiving benefits.” Id. Claimant argues that her activity of selling her jewelry and crafts online for extra money did not rise to the level of her being customarily engaged in an independently established business. Under these facts , we agree. As t he Board found, Claimant established an LLC, registered that LLC with the Department , advertised her goods, and set up a bank account for the business so that she could sell her jewelry and crafts online, (FOF ¶¶ 6

- 8), which suggest s that this venture was
more established than th ose considered in Buchanan and Teets . However, when viewed through the prism of the modern

- day marketplace and against the other factors found important in those cases, we conclude t he se facts are not dispositive14

of the legal issue of whether Claimant was customarily engaged with th is business
so as to make her self

- employed

. Similar to the claimant in Buchanan who sold his gold jewelry on a weekly
basis at a single flea market , Claimant sold her jewelry in a single online shop, Etsy,
which Claimant described as an online shop where artists can post their goods for
sale online

. (Transcript at 86

. ) In essence, Etsy is the online equivalent of the flea
market at which the claimant set up his booth in Buchanan

. Analogous to the
claimant in Buchanan , who paid a weekly fee when he sold an item for the privilege
of selling his goods at the flea market , Claimant paid a fee to Etsy for the privilege
of selling her goods using that platform

. A lthough Claimant indicated that she “w ent through the legalities to [set up a business] correctly,” she paid only $97 to do so and, l ike the claimant in Buchanan , did not obtain insurance. ( Id . at 85.) Last ly , similar to the claimant in Buchanan , Claimant’s testimony reflects that this busin ess was not intended to replace her permanent employment as an audiologist , but was a means to make some money while dealing with the difficulty of the restrictive covenant imposed by Pinnacle. This latter point was supported by the fact that
Claimant cre dibly testified that, by the time of the hearing, she had moved so as to avoid the strictures of that covenant. ( Id

. at 86

- 87.)
As for Teets , here, as in that case, there was little “evidence presented as to the level of time and effort [that C]laimant put into this project.” 615 A.2d at 9 90.
There was no testimony as to the amount of time or money Claimant spent in creating
her crafts or how much time she spent on the business per week

. Th e only evidence regarding Claimant’s expenditures was that she expended $97 to register the
business with the Department , and paid a fee to Etsy on each item sold, with the one example being that she had to pay Etsy $25 on an item that sold for $85

. And , while15

Claimant appears to have earned as much as $500 from the 4 sales, (C.R. Item 6 at
6

- 7), which is more than the $6 earned by the claimant in Teets , the Court is
unconvinced that this limited income means that Claimant’s activ ity reflects self

employment, rather than engaging in a side

- line activity or business under Teets

. Finally, to the extent Claimant appears to have advertised her goods on social media platforms, there is no evidence describing the extent or cost of that advertising , and
we view this as similar to the Teets ’ claimant’s efforts in enlisting other people into the pyramid sales program to sell products on, essentially, the claimant’s behalf.
As in Buchanan , “[i]f the facts of this case had been that [C] laimant was selling jewelry on a more consistent basis, ” we would be more apt to find that she was customarily engaged in her business. Buchanan , 581 A.2d at 1009. However, analyzing what Claimant actually “ has do ne

. . . in terms of providing personal
services for remuneration ,” Lowman , 235 A.3d at 303, and considering that four sales is far less customary than setting up a bo o th and selling jewelry at a flea market every weekend, Buchanan , 581 A.2d at 1009, we co nclude that Claimant was not customarily engaged in selling her merchandise via Etsy. Moreover , the evidence
indicates that , like the claimants in Buchanan and Teets , Claimant began this venture as a side business to generate whatever money she could whil e dealing with the restrictions on her ability to obtain employment as an audiologist. As the claimant
in Buchanan testified “ that he had no intent to sell jewelry at the flea market on a permanent basis ” and that “ the activity was one on the side to make some extra
money ,” Buchanan , 581 A.2d at 1009, the record before us reflects that Claimant
intended this business to be of a similar nature. Alt hough Claimant did not specifically testify as to her intent, she did testify that she was desperate to ma ke any
income while she was unable to work her chosen career at the time , was an artist16

who made handmade jewelry, and that Etsy provided an online medium to sell such merchandise. Further, in the letter that Claimant attached to her appeal of the Service Center’s denial, Claimant stated that the business was her turning her hobby into a side business. (C.R. Item 6 at 6

- 7 .) Under these facts , this Court concludes, as a matter of law, that this activity amounts to more of an occasional activity generating a limited amount of income, rather t han the level of customary engagement that
would rise to the level of self

- employment under Section 4( l )(2)(B) of the Law

. The Board argues that our precedent compels the opposite result, relying on Leary , 322 A.2d at 249, Salamak , 497 A.2d at 951, and Balmer , 358 A.3d at 1349. Because these cases are factually distinguishable, w e disagree. In Leary , the claimant was laid off from his position as a general construction superintendent. After applying for and receiving UC benefits, the claimant formed a construction corporation , entered into an agreement to buy a parcel of land , and then began constructing houses . This Court held that this conduct constituted self

- employment as of the date of the incorporation, the dat e of the first positive move towards the claimant establishing his own business

. Next, in Salamak , 497 A.2d at 954, this
Court relied on Leary to hold that a claimant had engaged in self

- employment , and was an “unemployed businessman” where, while receiving UC benefits, he became

a one

- third shareholder of a corporation , served as the corporate president, was a member of the board of directors, received a weekly salary, and became actively
involved in the management of the business whe n a problem arose. Finally, in
Balmer , this Court held that a claimant who worked as an elevator mechanic for
17 1/2 years and received UC benefits after being terminated from his employment engaged in self

- employment by registering a fictitious corporate name , starting a company servicing elevators , and actually servicing elevators . The claimant spent17

considerable sum s for startup costs, advertising, and insurance but abandoned the business after it was not profitable. Thus, similar to the claimant in L eary , the
claimant in Balmer created a business that put his career skills to work , and spent significant money and effort towards the business. On the other hand, Claimant’s activity of selling her handmade merchandise
online stemmed from her hobby as an artist, and there is no evidence showing that she spent any significant time or effort toward the venture . This is unlike the
claimants in Balmer and Leary , who created corporate entities to pursue their long

term careers and then , respectively, engage d in extended conduct such as expending considerable sums for operation and actually servicing elevators or entering into major agreements for land sales and the construction of homes thereon . Further, given the little evidence presented as to Claimant’s actual involvement with the
online business, the conduct of claimant in Salamak in sitting on the board, serving
as the president, collecting a weekly check, and involving himself in management is more indicative of customary engagement. While the Board asserts that the common
denominator of these cases

– incorporation or registration

– is alone sufficient to establish that Claimant was customarily engaged in a regularly established business, incorporation is just one of the non

- exclusive factors go ing to the “regularly established” component of the independence prong. Lo w man , 235 A.3d at 302

- 03. Further, finding one circumstance dispositive does not comport with the case

- by

case review approved by the Supreme Court in Lowman

. As such, because Lea ry , Salamak , and Balmer involve claimants whose conduct rose to the level of customary involvement, they are not inconsistent with this opinion. Similarly , this Court’s unreported decisions in Banyas and Coleman , cited by the Board as distinguishing Buc hanan , do not compel a contrary result. In Banyas ,18

the claimant was laid off from a business loan center, had a degree in business administration/accounting , completed a real estate salesperson examination, and
then created , registered , and provided servi ces for a business purporting to engage in commercial loan brokering, real estate agent services, and assistance with residential mortgages. The claimant earned over $4,600 in commissions for his efforts. We held that the claimant was engaged in self

- emp loyment. I n Coleman , the claimant was laid off from his profession as an emergency medical technician and then incorporated his own ambulance business, Universal Ambulance, which required that he obtain a license and insurance to operate . The claimant sought to
make the income from this venture his sole source of income. We held that this
conduct constituted self

- employment and d istinguish ed the claimant’s intent to incorporate and run his business to be his primary source of income fro m cases that
involved the creation of a side

- line business , as in Buchanan and Teets , wh ere the
claimants had only intended to start side venture s

. In both Banyas and Coleman , the claimants created and incorporated companies with the intent to establish a full

- time venture within their chosen, professional careers. Under those circumstances, such conduct rises to self

employment under Section 4 ( l )(2)(B) of the Law

. Importantly, in Coleman , this Court recognized that simply engaging in a side

- line busin ess was not self

employment under Section 4( l )(2)(B). Coleman , slip op. at 7

- 8. Here , Claimant’s attempt to make extra income while she was unable to continue her professional

career was creating a side business out of her hobby , rather than an attempt to create
a full

- time venture to replace that career

. Reviewing these cases, this situation is more aki n to Buchanan and Teets , than
Le a ry , Salamak , Balmer , Banyas , and Coleman

. While there is some evidence that19

Claimant took more formalized steps with her business than the claimants in
Buchanan and Teets , t here is no indication in the record that Claimant ’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. It was, as in Teets ,

e ssentially a side

- line activity or business that, even though it was begun after her separation from Pinnacle, did not establish that Claimant was self

- employed. Holding that, as a matter of law, Claimant was not customarily engaged in an independent busi ness or trade under these circumstances is consistent with the well settled principle that “the . . . Law is a remedial statute, and . . . its provisions must be liberally construed and broadly construed so that its objectives . . . may be completely achi eved,” A Special Touch , 228 A.3d at 503, and the Supreme Court’s recent statement that “the determination that an individual is self

- employed is highly consequential ” because an “ individual who is otherwise eligible for benefits due to separation from emp loyment receives no benefits for any week of self

- employment ,”
Lowman , 235 A.3d at 281. Because Claimant was not customarily engaged in an independently established business under Section 4( l )(2)(B) of the Law , she was not
self

- employed, and the Board erred as a matter of law in finding Claimant ineligible
for UC benefits on this basis. 8

III. CONCLUSION For the foregoing reasons, we reverse the Board’s Order

.

_______________ ___________________________ RENÉE COHN JUBELIRER, President Judge

8 Because we resolve this matter on this issue, w e do not reach Claimant’s remaining arguments.IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Mariana Collins, : Petitioner :

: v. : No. 754 C.D. 2021

: Unemployment Compensation : Board of Review, : Respondent :

O R D E R

NOW , August 9, 2022 , the O rder of the Unemployment Compensation Board of Review, dated May 27, 2021, is REVERSED

.

_______________________ ___________________ RENÉE COHN JUBELIRER, President Judge