Opinion
No. 1101 C.D. 2012
12-03-2012
Kastle Philadelphia Joint Venture, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COVEY
Kastle Philadelphia Joint Venture (Employer) appeals from the Unemployment Compensation Board of Review's (UCBR) May 14, 2012 order affirming the Referee's determination denying Employer relief from charges under Section 302(a)(2) of the Unemployment Compensation Law (Law). Employer presents two issues for this Court's review: (1) whether the UCBR erred by finding a material change in Claimant's employment, and (2) whether the UCBR misconstrued Section 302(a)(2) of the Law. We affirm.
Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. § 782(a)(2). Employer and the UCBR reference Section 302(a)(2) of the Law. However, effective August 16, 2011, the provisions therein were moved to Section 302.1 of the Law, added by Section 3 of the Act of June 17, 2011, P.L. 16, 43 P.S. § 782.1(a)(3). Because the provisions are substantially similar, for purposes of clarity, we will refer to Section 302(a)(2).
Kaleena L. Smith (Claimant) filed an application for unemployment compensation (UC) benefits and was deemed eligible. Employer did not appeal that determination. On January 25, 2012, Employer filed a Request for Relief from Charges with the Department of Labor and Industry (Department), which is a mechanism by which an employer may request that benefits paid not be charged against the employer's UC reserve account. On February 3, 2012, the Department issued a notice of determination to Employer which stated: "Your Request for Relief from Charges is DENIED because the claimant's employment with you is not continuing part-time employment within the provision of Section 302(a)(2) of the [Law]." Original Record (O.R.) Item 3. The notice also stated: "EMPLOYER: THIS IS NOT A DETERMINATION OF THE CLAIMANT'S ELIGIBILITY FOR BENEFITS." Employer timely appealed the February 3, 2012 determination. A hearing was held before a Referee on March 12, 2012, at which two of Employer's employees testified. Claimant did not appear at the hearing. On March 23, 2012, the Referee affirmed the Department's determination and denied Employer's request for relief from charges. Employer appealed from the Referee's decision. On May 14, 2012, the UCBR affirmed the Referee's decision. Employer appealed to this Court.
"Under Pennsylvania [L]aw, an [e]mployer seeking relief from charges is requesting a tax exemption." First Nat'l Bank of Bath v. Unemployment Comp. Bd. of Review, 619 A.2d 801, 803 (Pa. Cmwlth. 1992).
This Court's "scope of review in unemployment compensation cases is limited to whether necessary findings of fact are supported by substantial evidence, whether an error of law has been committed, or whether constitutional rights have been violated." First Nat'l Bank of Bath v. Unemployment Comp. Bd. of Review, 619 A.2d 801, 803 n.4 (Pa. Cmwlth. 1992).
Employer first argues that the UCBR erred by affirming the Referee's decision denying relief from charges on the basis that Claimant was ineligible for benefits because she was not unemployed and there was no change in her employment status. Employer's claim of error has no merit.
Under Section 501(e) of the Law, failure to file an appeal renders the determination final. 43 P.S. § 821(e). Here, the determination finding Claimant eligible for benefits was not appealed. Instead, Employer filed a Request for Relief from Charges. It is well settled that the filing of an appeal from an eligibility determination is separate and distinct from the filing of a Request for Relief from Charges, and the filing of a Request for Relief from Charges will not serve as an appeal from an eligibility determination. First Nat'l Bank of Bath v. Unemployment Comp. Bd. of Review, 619 A.2d 801 (Pa. Cmwlth. 1992). See also Pennsylvania Tpk. Comm'n v. Unemployment Comp. Bd. of Review, 991 A.2d 971 (Pa. Cmwlth. 2009). Thus, to the extent Employer's challenge is an attempt to revisit Claimant's eligibility for benefits, it must fail.
Employer next argues that even if Claimant is entitled to benefits, the UCBR erroneously concluded that Employer does not fall within the relieving provisions of Section 302(a)(2) of the Law.
Employer contends that the UCBR erroneously concluded that because Section 302(a)(2) of the Law grants relief only if "the [D]epartment finds that an individual subsequent to separation from his work is engaged in part-time work for a base year employer, other than a base year employer from whom he was separated," relief can only be granted if there is another base employer. O.R. Item 10. Employer also avers that it is not a separating employer because Claimant continues to work for Employer. Employer's arguments must fail.
Section 302(a)(2) of the Law provided:
This section was changed effective August 16, 2011. The quoted text reflects the section as it read prior to that date.
Notwithstanding the provisions of paragraph (1) of this subsection, if the department finds that an individual subsequent to separation from his work is engaged in part-time work for a base year employer, other than a
base year employer from whom he has separated, compensation paid to such individual with respect to any week of unemployment occurring subsequent to such separation and while such part-time work continues without material change, shall not be charged to the account of such part-time employer; provided, such part-time employer has filed a notice with the department in accordance with its rules and regulations and within the time limits prescribed therein.43 P.S. § 782(a)(2) (emphasis added). When determining whether an employer is entitled to a relief from charges, "strict construction is required." First Nat'l Bank of Bath, 619 A.2d at 803.
As of August 16, 2011, Section 302.1 provides, in pertinent part:
Notwithstanding any other provisions of this act assigning charges for compensation paid to employes, the [D]epartment shall relieve an employer of charges for compensation in accordance with this section and section 213 of this act.
(a) Circumstances allowing relief:
. . . .
(3) If an individual subsequent to separation from his work is engaged in part-time work for a base year employer, other than a base year employer from whom he has separated, the part-time employer shall be relieved of charges for compensation paid to the individual with respect to any week of unemployment occurring subsequent to the separation and while such part-time work continues without material change.
We agree with the UCBR that application of the plain language of Section 302(a)(2) of the Law requires the existence of another base year employer. Because there is no record evidence establishing the existence of another base year employer, the UCBR properly concluded that Section 302(a)(2) of the Law does not apply. Even if we were to accept Employer's contention that there was no separation, its argument would fail, since relief under Section 302(a)(2) of the Law applies only "if the [D]epartment finds that an individual subsequent to separation from his work is engaged in part-time work . . . ." 43 P.S. § 782(a)(2) (emphasis added). Here, the Department made no such finding.
For all of the above reasons, the UCBR's order is affirmed.
/s/_________
ANNE E. COVEY, Judge
ORDER
AND NOW, this 3rd day of December, 2012, the Unemployment Compensation Board of Review's May 14, 2012 order is affirmed.
/s/_________
ANNE E. COVEY, Judge
43 P.S. § 782.1.