State ex rel. Cassinelli v. Bassett, 12317

• Citation: 148 W.Va. 697,137 S.E.2d 232
• Decision Date: 30 June 1964
• Docket Number: No. 12317,12317
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. Peter CASSINELLI v. Clement R. BASSETT, Commissioner, etc.

Page 232

137 S.E.2d 232

148 W.Va. 697

STATE ex rel. Peter CASSINELLI v. Clement R. BASSETT, Commissioner, etc.

No. 12317.

Supreme Court of Appeals of West Virginia.

Submitted May 26, 1964.

Decided June 30, 1964.

Syllabus by the Court

Under the provisions of Code, 1931, 21A-7-11, as amended, mandamus lies, after thirty days from the date of mailing of notification of the decision of the Board of Review of the Department of Employment Security, to enforce the payment of an award of unemployment compensation benefits based upon a claim which is not subject to the proviso contained in that statute.

Kingdon & Kingdon, Arthur Ritz Kingdon, Mullens, for relator.

Jack O. Friedman, Charleston, for respondent.

CALHOUN, Judge.

In this original proceeding in mandamus, Peter Cassinelli seeks to require the respondent Honorable Clement R. Bassett, Commissioner of the West Virginia Department of Employment Security, to pay Cassinelli unemployment compensation benefits in the sum of $832.00 pursuant to the decision of the Board of Review of the Department of Employment Security, which is evidenced by an order entered on August 19, 1963. An answer filed to the mandamus petition in behalf of the respondent asserts, among other defenses, that Peter Cassinelli is disqualified to receive unemployment compensation benefits because he was a member of the partnership by which he alleges that he was employed.

In 1944, Charles C. Cassinelli, Magdelene Cassinelli, his wife, Tony Cassinelli and Della Cassinelli, his wife, entered into a partnership agreement which provided that the partnership would continue during the mutual will of the partners 'and until terminated by death, bankruptcy or insolvency of one or more members.' Tony Cassinelli and Della Cassinelli were parents of the claimant. The partnership, known as Wyoming Theatres Company, was formed for the purpose of owning and operating several theaters in Wyoming County.

Peter Cassinelli was employed by the partnership in September, 1959, at a salary of $95.00 a week, as manager of two theaters owned by the partnership. On November 8, 1959, Della Cassinelli died. By will she devised and bequeathed her entire estate in equal proportions to Peter Cassinelli, the claimant, and his sister, Martha Wirtz. Each of the two devisees thereby became an owner of a one-eighth undivided interest in the partnership assets.

Peter Cassinelli continued to be employed in the same capacity and at the same salary after the death of his mother. In February, 1962, a suit was instituted in the Circuit Court of Wyoming County to wind up the affairs of the partnership. On March 18, 1963, Peter Cassinelli was discharged from his employment by the receiver who had been appointed in the court proceedings. During the period of about three and one-half years of Peter Cassinelli's employment contributions were paid on account of his salary and such contributions were received and accepted by the department.

After his discharge by the receiver from his employment, Peter Cassinelli made application for unemployment compensation benefits. A deputy for the reasondent commissioner, to whom the claim was referred, made a decision in which he stated that the claimant had been 'manager and partner in this company;' that the claimant 'is unemployed only because of a suit' pending in court; and that, in such circumstances, he was 'not partially or totally unemployed as defined in the law.' This finding was 'affirmed' by an examiner and thereupon the claimant appealed to the board of review of the department. In reversing the decision of the deputy and in holding that the claimant was eligible to receive unemployment compensation benefits, the board of review stated:

'In view of the fact that this Claimant was employed by a partnership, of which he was a partner, does not seem to have influenced the Department of Employment Security in its acceptance of contributions paid by the partnership on account of his wages, the Board of Review fails to find a basis for a distinction between this Claimant and other employees of partnerships.'

Counsel for Peter Cassinelli points out that he was employed by the partnership for about two months while his mother was living and before he owned any interest whatsoever in the partnership or its assets; and contends that, upon the death of the claimant's mother, the partnership was dissolved both by operation of law and by the provision of the partnership agreement which has been quoted earlier in this opinion. On the other hand, counsel for the respondent contends that the claimant became a member of the partnership, by some means or other, after his mother's death. We do not consider it necessary to a decision of this case that we decide whether the claimant did or did not become a member of the partnership after his mot...