Opinion
No. 115 C.D. 2012
10-05-2012
Emilia M. Collins, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE COLINS
Emilia M. Collins (Claimant), pro se, petitions for review of the January 11, 2012, order of the Unemployment Compensation Board of Review (Board), which adopted the findings and conclusions of the referee denying Claimant unemployment compensation for the week ending May 21, 2011, through the week ending September 10, 2011. The Board concluded that Claimant was ineligible for benefits for those weeks because Claimant was not unemployed under sections 401 and 4(u) of the Unemployment Compensation Law (Law). We affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §§ 801, 753(u).
The facts, as initially found by the referee and adopted by the Board, are as follows:
1. The claimant began working for Point Park University on August 27, 2007, and last worked on May 6, 2011, as a full-time visiting associate professor, at a final rate of pay of $4,685 per month. Point Park University is an educational institution.
2. The claimant provided services to Point Park University pursuant to a one-year contract which was renewed each year of service.
3. The last contract which is at issue was for academic year 2010-2011 and provided "remuneration for instruction and other professional services shall be $56,222 base salary to be prorated on the basis of 12 months beginning on September 1, 2010. Information on the benefit package offered to active full-time faculty members is included in the attached document."
4. The benefits package included medical benefits for health insurance, life insurance and participation options in dental plans for each of 12 months of the term of the contract. Pursuant to course of practice, the employer would notify the claimant in April of each year whether the contract was going to be renewed and provide the employee with a new contract for execution in May or June of each year.
5. Consistent with its practices, the Point Park University notified the claimant verbally in April that her contract would not be renewed and later confirmed that the claimant would not be returning to the University in the 2011-2012 academic year.
6. The claimant's last day of actual work was May 6, 2011, which commenced during the period between the two academic terms.
7. The claimant remained under contract through the normal expiration of her contract, August 31, 2011, receiving the scheduled monthly payments for salary and receiving the employer's contributed to benefits in accordance with that contract.
8. The claimant performed no additional work for the employer after May 6, 2011, but was expected to provide any follow-up services necessary to service the needs of students which may have arisen out of services rendered during the primary 9 months of the contract.
9. The claimant applied for and received $9,503 in unemployment compensation benefits for claim weeks ending May 21, 2011, through claim week ending September 10, 2011, based on no reported earnings.(Referee Opinion, Findings of Fact (F.F.) ¶¶1-9.)
The referee concluded that claimant was ineligible for the week ending May 21, 2011, through the week ending September 10, 2011, under Sections 401 and 4(u) of the Law. 43 P.S. §§ 801, 753(u). The referee reasoned that because Claimant continued to receive pay and insurance coverage under her employment contract during the weeks in question, she was not unemployed during those weeks and, as a result, ineligible to receive benefits. (Referee Opinion at 2-3.) The referee also found that Claimant had received a non-fault overpayment in the amount of $9,503, for the weeks in question (which include the non-compensable waiting week).
The referee also concluded that claimant was eligible for benefits after September 10, 2011, under Section 402.1 of the Law, because she became unemployed for the following academic year. 43 P.S. § 802.1, added by the Act of July 6, 1977, P.L. 41. That determination is not before the Court.
Under Section 804(b) of the Law, 43 P.S. § 874(b)(1), Claimant is not liable to repay a non-fault overpayment, but the amount will be deducted from any future unemployment compensation payable to her during the benefit year in question and the following three-year period.
The Board affirmed the referee's decision and adopted his findings of fact.
On appeal to this Court, Claimant argues that the Board erred in finding that she was not unemployed during the summer of 2011, because even though she was paid over 12 months, she only performed services for her employer during the school year, through her last day of work on May 6, 2011. We disagree.
Our scope of review is limited to determining whether necessary findings of fact are supported by substantial evidence, whether an error of law was committed, or whether constitutional rights were violated. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704; Collier Stone Co. v. Unemployment Compensation Board of Review, 876 A.2d 481, 483 n.2 (Pa. Cmwlth. 2005); Comitalo v. Unemployment Compensation Board of Review, 737 A.2d 342, 344 (Pa. Cmwlth. 1999).
Section 401 of the Law states in relevant part: "Compensation shall be payable to any employe who is or becomes unemployed. . . ." 43 P.S. § 801. Section 4(u) of the Law specifically defines unemployed as follows:
An individual shall be deemed unemployed (I) with respect to any week (i) during which he performs no services for which remuneration is paid or payable to him and (ii) with respect to which no remuneration is paid or payable to him, or (II) with respect to any week of less than his full-time work if the remuneration paid or payable to him with respect to such week is less than his weekly benefit rate plus his partial benefit credit.43 P.S. § 753(u).
This Court has consistently held that teachers are not "unemployed" for the purposes of receiving unemployment compensation for the summer months when they are paid over a 12-month period, regardless of whether they actually receive payment during the summer months or elect to receive a lump-sum payment for those months. See Gusky v. Unemployment Compensation Board of Review, No. 2346 C.D. 2011, ___ A.3d ___, 2012 WL 3732811 (Pa. Cmwlth. Aug. 30, 2012); Kandala v. Unemployment Compensation Board of Review, 489 A.2d 293 (Pa. Cmwlth. 1985) (explaining that Section 4(u) of the Law refers to remuneration that is "paid or payable"); Partridge v. Unemployment Compensation Board of Review, 430 A.2d 735 (Pa. Cmwlth. 1981); Holets v. Unemployment Compensation Board of Review, 394 A.2d 1299 (Pa. Cmwlth. 1978); Hyduchak v. Unemployment Compensation Board of Review, 387 A.2d 669 (Pa. Cmwlth. 1978).
Here, Claimant does not dispute she was paid a salary and benefits over a 12-month period. (Hearing Transcript at 6-7, 15.) Her contract indicates that she was employed and paid over a 12-month period, through August 2011, even though her "active" employment ended in May. (Hearing Transcript, Exhibit 2.) Thus, she cannot be considered unemployed until her remuneration ceased on August 31, 2011. That Claimant was informed in April that her contract would not be renewed for the next academic year does not change the fact that Claimant continued to be paid under her contract through August. Under our prior decisions, it is clear that Claimant was not unemployed under the Law until after August 31, 2011.
Claimant makes the related arguments that the Board incorrectly calculated her monthly rate of pay and failed to recognize that her medical and other fringe benefits accrued solely for work performed during the school year's eight months of active employment. Thus, according to Claimant, the Board should have calculated her pay as $7,028 over eight months, not $4,686 over twelve months. These arguments fail for the reasons set forth above. Further, Claimant's contract indicated she was employed for, was to be paid over, and was to receive benefits over, a twelve-month period, not eight. --------
Accordingly, we affirm the Board's decision.
/s/_________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 5th day of October, 2012, the order of the Unemployment Compensation Board of Review, dated January 11, 2012, at No. B-528423, is AFFIRMED.
/s/_________
JAMES GARDNER COLINS, Senior Judge