Opinion
No. 2179 C.D. 2011
05-29-2012
Brian W. Kelly, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Brian W. Kelly (Claimant) challenges the order of the Unemployment Compensation Board of Review (Board) which affirmed the referee's denial of benefits under Sections 401, 4(u), and 404(d) of the Unemployment Compensation Law (Law).
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §§801, 753(u), and 804(d)(1). The Board found Claimant eligible for benefits under Section 402.1 of the Law, 43 P.S. §802.1, because he would not return to teach after the summer in the next academic year. That determination is not before this Court. Section 402.1 of the Law, 43 P.S. §802.1, was added by the Act of July 6, 1977, P.L. 41.
The facts, as initially found by the referee and confirmed by the Board, are as follows:
1. The claimant was employed by Marywood University from August 25, 2010 through May 20, 2011.
2. The claimant was hired as a part time instructor to teach two courses per semester.Referee's Decision, August 4, 2011, (Decision), Finding of Fact Nos. 1-6 at 1.
3. The claimant signed a contractual letter outlining the details of his employment.
4. The claimant was paid over a twelve month period with the last payment scheduled on August 19, 2011.
5. The claimant was notified he would not be reappointed to his position for the 2011-2012 school year.
6. The claimant requested his last payment be on June 24, 2011.
The referee determined:
The testimony established that the claimant was to be paid over a twelve month period with his last payment to be August 19, 2011. Due to the claimant's request, the claimant was allowed to receive all payments as of June 24, 2011.Decision at 2.
In a decision issued in Commonwealth Court (Partridge [v. Unemployment Compensation Board of Review, 430 A.2d 735 (Pa. Cmwlth.1981)] . . . an employee who elected to receive a lump sum payment in lieu of salary over the summer months was not considered unemployed within the meaning of Sections 401, 4(u) of the Pennsylvania Unemployment Compensation Law.
The claimant, by his option, chose to receive a lump sum payment at the end of the academic year through August 19, 2011. As a result, the claimant is ineligible for benefits to the extent of the original twelve month option.
The claimant is denied benefits under Sections 401, 4(u) and 404(d) for the weeks ending 05/07/11 and 5/14/11 through 8/20/11.
The Board affirmed.
Claimant contends that the Board committed an error of law when it determined that he was not unemployed despite the fact that he was terminated by his employer, received no health insurance, severance pay, sick or vacation leave, or any benefit of any kind from Marywood University (Employer) other than the compensation that he earned during the school year and deferred to the summer months. Claimant argues that the Board erred when it found that he was ineligible for benefits under Sections 401, 4(u), and 404 of the Law.
This Court's review in an unemployment compensation case is limited to a determination of whether constitutional rights were violated, errors of law were committed, or findings of fact were not supported by substantial evidence. Lee Hospital v. Unemployment Compensation Board of Review, 637 A.2d 695 (Pa. Cmwlth. 1994).
Under Section 401 of the Law, a claimant must be unemployed in order to receive benefits. Section 4(u) of the Law, 43 P.S. §753(u), defines "unemployed" as follows: "An individual shall be deemed unemployed (1) 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."
Section 404(d)(1) of the Law, 43 P.S. §804(d)(1), provides as follows:
Notwithstanding any other provisions of this section each eligible employe who is unemployed with respect to any week ending subsequent to July 1, 1980 shall be paid, with respect to such week, compensation in an amount equal to his weekly benefit rate less the total of (i) the remuneration, if any, paid or payable to him with respect to such week for services performed which is in excess of his partial benefit credit and (ii) vacation pay, if any, which is in excess of his partial benefit credit, except when paid to an employe who is permanently or indefinitely separated from his employment.
Claimant acknowledges that this Court has interpreted Sections 401 and 4(u) of the Law to deny eligibility to teachers who elect to defer compensation over summer months. See, e.g., 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); Partridge v. Unemployment Compensation Board of Review, 430 A.2d 735 (Pa. Cmwlth. 1981). However, Claimant asserts that in all such cases the unemployment claimant had something more that connected them to their employer such as continuing health insurance coverage or life insurance coverage, the receipt of a severance package or payment for sick or vacation leave. He, on the other hand, had no continuing connection to Employer.
In Kandala v. Unemployment Compensation Board of Review, 489 A.2d 293 (Pa. Cmwlth. 1985), this Court addressed this issue. Joseph G. Kandala (Kandala) was a teacher at Hempfield High School (Hempfield). On May 27, 1982, Hempfield informed Kandala that he was going to be furloughed for the 1982-83 school year due to declining enrollment. Kandala's medical benefits, life insurance benefits, and other fringe benefits would continue until the beginning of the 1982-83 school term. In June 1982, Kandala requested and received the remainder of his salary for the 1981-82 school year in a lump sum payment though he was scheduled to receive his salary over a twelve month period. Kandala, 489 A.2d at 293.
Kandala applied for unemployment compensation benefits. The Board determined that Kandala was ineligible for benefits for the compensable weeks ending June 19, June 26, and July 3, 1982, because he was not unemployed as that term was defined in Section 4(u). Kandala petitioned for review with this Court and argued that he and other claimants who were teachers were denied equal protection under the law because unemployment compensation benefits were denied on the basis that he continued to receive employee benefits during the summer months where other claimants who worked in other occupations and continued to receive employee benefits while furloughed were awarded unemployment compensation benefits. Kandala, 489 A.2d at 294.
This Court found no constitutional violation and affirmed:
We believe, however, that the Claimant has mischaracterized our holdings in Partridge, Holets and Hyduchak. In each of these cases . . . we held that the claimants were not 'unemployed' for the purposes of receiving unemployment compensation benefits for the summer months because they were to receive wages during that time; the decisions were not based on the fact that the claimant in those cases might also have been continuing to receive employee fringe benefits during the summer months.
. . . .
And here, where the claimant's employment contract provided that his wages . . . would be paid over a twelve month period, we do not believe that his receipt of a lump sum payment in June covering his wage for June, July and August supports a conclusion that he was 'unemployed' during the weeks here in question. . . . In
particular, we note that Section 4(u) impliedly states that a claimant can not [sic] be considered unemployed in any week in which remuneration is 'paid or payable' and, further, it can not [sic] be contested here, that, under the claimant's employment contract his wages were 'payable' over the course of the summer months. (Footnotes omitted).Kandala, 489 A.2d at 294.
Claimant's situation is exactly like Kandala's. Claimant was informed that he would not be retained for the next academic year. Claimant took a lump sum payment of his remaining salary rather than continue to be paid on a regular basis until August 19, 2011. As in Kandala, remuneration was paid to Claimant during the weeks in question. Consequently, the Board did not err when it determined he was ineligible for benefits.
Accordingly, this Court affirms.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 29th day of May, 2012, the order of the Unemployment Compensation Board of Review in the above-captioned matter is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge