Opinion
No. 7470
Decided January 31, 1977
Unemployment Compensation — Computation of Benefits In accordance with the discussion in Foster v. State, 117 N.H. 16, 370 A.2d 257 (1977), the base period wages upon which plaintiff's annual earnings are to be computed include all wages he earned in 1973 while employed by the corporation whose capital stock was owned entirely by him and his wife.
New Hampshire Legal Assistance, Bruce E. Friedman and Robert D. Gross, of Manchester (Mr. Friedman orally) for the plaintiff.
Edward F. Smith, Andre J. Barbeau, Michael M. Black, Paul V. Kenneally and Robert L. Hermann, Jr., of Concord (Mr. Barbeau orally) for the defendant.
Defendant R. C. Foss Son, Inc., waived filing of brief and oral argument.
Plaintiff appealed to the superior court under RSA ch. 282 from a decision of the department of employment security appeal tribunal upholding a determination of his weekly benefit rate. Plaintiff's motion for summary judgment was denied by the Trial Court (Perkins, J.), and all questions of law raised by the plaintiff's exception thereto were reserved and transferred.
In 1973 plaintiff Wilfrid Dupuis earned $5,406 from Dupuis Sons, Inc., a corporation whose capital stock was owned entirely by the plaintiff and his wife. He earned an additional $645 in that same year from Robert Beloin. For the first eight months of 1973, Dupuis was excluded from the coverage of the unemployment compensation statute by RSA 282:1-H(4) (d) (Supp. 1972), which provided that services performed "for a corporation fifty percent of whose stock is held either individually or collectively by [the claimant] and/or [his spouse]" should not be considered "employment" within the meaning of the act. This provision was repealed by Laws 1973, 589:7, bringing the plaintiff within the act's coverage as of September 10, 1973.
In October of 1974, upon being laid off from work by his current employer, Dupuis applied for unemployment compensation. It was determined that he was entitled to weekly benefits of $17 per week for a period of eighteen weeks, based upon annual earnings received during 1973, his base year, of the $645 from Robert Beloin and the $543 he earned from Dupuis Sons, Inc., after September 9, 1973.
The plaintiff contends, however, that his entire 1973 earnings from Dupuis Sons, Inc., should be considered in the determination of his annual earnings. This question is examined in detail in Foster v. State, 117 N.H. 16, 370 A.2d 257 (1977), decided this day. In accordance with our discussion therein, we hold that the base period wages upon which plaintiff's annual earnings are to be computed include all wages earned from January 1, 1973, to the end of that year. The plaintiff was, therefore, entitled to judgment as a matter of law and the motion for summary judgment should have been granted.
Exceptions sustained.
DOUGLAS, J., did not sit.