Opinion
No. 1275 C.D. 2011
03-21-2012
Gary Weniger, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
This case was assigned to the opinion writer on or before January 6, 2012, when President Judge Leadbetter completed her term as President Judge.
Gary Weniger (Claimant) petitions for review of the June 15, 2011, order of the Unemployment Compensation Board of Review (Board) affirming the decision of a referee that Claimant is not financially eligible for unemployment compensation benefits under the Unemployment Compensation Law (Law). We affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §§751-914. Section 401(a) of the Law provides for the payment of benefits to a claimant who has been paid sufficient qualifying wages as required by section 404 for employment during his base year. 43 P.S. §§801(a), 804; Jackson v. Unemployment Compensation Board of Review, 933 A.2d 155, 157 (Pa. Cmwlth. 2007). Section 404(e) and Appendix A to section 65.111 of the Department of Labor and Industry's regulations provide a table outlining the required base year wages, the rate of benefits, and the amount of benefits provided under the Act. 43 P.S. §804(e); 34 Pa. Code §65.111, Appendix A. As the Pennsylvania Supreme Court has explained:
To determine financial eligibility under this Table, a claimant first determines her "highest quarterly wages" (Part A) earned during the base year which, in turn, determines the corresponding rate and total amount of compensation provided in Parts B and D of the Table. However, in order to be eligible for those benefits, the claimant must have earned, in her base year, the amount set forth in Part C, "Qualifying Wages". The "qualifying wage" column when applied in conjunction with the highest quarterly wage column is designed to ensure that a certain percentage of a claimant's wages will have been earned outside of her highest quarter, so as to demonstrate that a claimant has been genuinely attached to the labor force....
On January 4, 2011, Claimant filed an application for benefits effective January 2, 2011. (Finding of Fact No. 1.) Claimant's base year to determine his eligibility for benefits was October 1, 2009, through September 30, 2010. (Finding of Fact No. 2.) Claimant's total base year wages were $21,641.78, comprised of: $1,288.00 from Clearbrook Lodge for the fourth quarter of 2009; $1,064.00 from Clearbrook Lodge for the first quarter of 2010; $512.00 from Clearbrook Lodge and $4,663.73 from Glenn O. Hawbaker, Inc. for the second quarter of 2010; and $14,114.05 from Glenn O. Hawbaker, Inc. for the third quarter of 2010. (Findings of Fact Nos. 3, 4.) Claimant performed casual work in the fourth quarter of 2009 that totaled approximately $1,000.00. (Finding of Fact No. 6.)
On January 1, 2010, Claimant started working for Marushka Farms (Employer). (Finding of Fact No. 7.) Claimant performed various duties on the farm which included feeding the animals, mowing grass, and carpentry work. (Finding of Fact No. 8.) Claimant received $5,100.00 in total gross earnings from Employer, $4,310.00 during the first quarter of 2010 and $790.00 for the second quarter of 2010. (Findings of Fact Nos. 10, 11.) Claimant received a W-2 statement from Employer. (Finding of Fact No. 9.)
On February 4, 2011, the local service center determined that Claimant was not eligible for benefits under section 404 of the Law because he had not been paid sufficient base year wages. (Certified Record (C.R.) Item No. 2.) Claimant's earnings from Employer were not considered in determining his financial eligibility for benefits because Employer does not employ ten or more employees and did not pay remuneration of $20,000.00 or more to employees engaged in agricultural labor. (Findings of Fact Nos. 12, 13, 14.)
Claimant appealed, and a hearing was held before a referee. Claimant testified that Drs. Steven and Marie Minnich own Marushka Farms. (N.T. 3/25/11 at 3-4.) Claimant stated that from October of 2009 to January of 2010, he helped Dr. Minnich's elderly mother, Mamie, at her house approximately eight to ten miles from the farm. (Id. at 3, 4.) He stated that he kept Mamie Minnich company, mowed her grass, took in her newspaper, painted and hung wallpaper, and took her to the hospital on a number of occasions. (Id.) Claimant indicated that he was paid by the Minnichs for his services to Mamie Minnich and he received perhaps $1,000.00. (Id. at 5, 6.)
"N.T. 3/25/11" refers to the transcript of the referee's hearing.
Claimant testified that he started working for Employer in January of 2010 while still helping with Mamie Minnich. (N.T. 3/25/11 at 5, 7.) He stated that, after the Minnichs had purchased 79 more sheep, he also helped on the farm with the animals and performed carpentry work. (Id. at 3, 5.) Claimant testified that he did whatever job the Minnichs assigned him to do around the farm. (Id. at 7.) He explained that he normally works in construction, and there are layoffs in the winter, so he only worked for Employer until the end of April. (Id.) Claimant stated that he received a W-2 wage and tax statement from Employer at the end of the year, Employer had fewer than ten employees, and he earned less than $20,000.00 in any calendar quarter. (Id. at 5, 6.) Claimant's exhibits show that he earned a total of $5,100.00 in wages from Employer, $4,310.00 in the first quarter of 2010 and $790.00 in the second quarter of 2010. (Certified Record (C.R.) Item No. 2 at 2, 3; Exhibits C-3, C-4.)
On March 29, 2010, the referee issued a decision affirming the service center's determination that Claimant is not eligible for benefits under the Law. (Referee Decision at 3.) The referee noted that the table in the regulations provides that a claimant with highest quarterly wages of $14,114.00 would be eligible for weekly benefits of $567.00 if he had $22,600 in total base year wages. (Id. at 2.) The referee determined that Claimant's total base year wages of $21,641.78 did not meet the threshold amount necessary to qualify for benefits. (Id.) The referee then looked to the next three lower benefit rates under section 404(a)(3) and found that the third next lower base year wage was $22,480.00, and again determined that Claimant's total base year wages did not meet the required amount. (Id.)
More specifically, a claimant with highest quarterly wages between $14,113.00 and $14,137.00 would receive $567.00 in weekly benefits with qualifying base year wages of $22,600.00. 34 Pa. Code §65.111, Appendix A.
A claimant with highest quarterly wages between $14,038.00 and $14,062.00 would receive $564.00 in weekly benefits with qualifying base year wages of $22,480.00. 34 Pa. Code §65.111, Appendix A.
The referee did not include the wages Employer paid Claimant for his work on the farm in the calculation of his base year wages because she determined that Employer did not meet the agricultural labor exclusion of section 4(l)(3)(G)(a) of the Law. (Referee Decision at 2.) The referee also did not include the wages Claimant was paid for his work for Mamie Minnich, stating, "The claimant contends he received wages for performing casual work in the 4th quarter of 2009, but provided no proof of those wages. As such, the referee deems that the claimant's base year wages are properly reported and [he] is financially ineligible for benefits." (Id.) Claimant appealed the referee's decision, and, on June 15, 2011, the Board issued an order adopting and incorporating the referee's findings and conclusions and affirming the referee's order. Claimant then filed the instant petition for review.
In pertinent part, the Board noted:
[S]ection 4(l)(4)(1)(b) defines agricultural labor to include services performed '[i]n the employ of the owner [...] of a farm in connection with the operation, management, conservation, improvement or maintenance of such farm and its tools and equipment....' [Claimant's] activities for [Employer] mowing the grass and performing carpentry work would be included in this definition. [Claimant] cannot parse out his agricultural work from other work....(Board Order.)
Our scope of review in an unemployment compensation appeal is limited to determining whether an error of law was committed, whether constitutional rights were violated, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704; Shrum v. Unemployment Compensation Board of Review, 690 A.2d 796, 799 n. 3 (Pa. Cmwlth.), appeal denied, 548 Pa. 663, 698 A.2d 69 (1997).
In this appeal, Claimant contends that the Board erred in excluding the wages that Employer paid him for his work on the farm and for the casual labor that he provided to Mamie Minnich from his base year wages because this work does not fall under the agricultural labor exclusion of section 4(l)(4)(1) of the Law. We do not agree.
Claimant concedes that the agricultural labor exclusion of section 4(l)(3)(G)(a) does not apply in this case.
A claimant has the burden to prove financial eligibility for benefits under sections 401 and 404 by establishing that he earned sufficient qualifying wages for employment during his base year. Jackson v. Unemployment Compensation Board of Review, 933 A.2d 155, 157 (Pa. Cmwlth. 2007). As the burdened party, a claimant must meet both his burden of production and his burden of persuasion in order to prevail on his claim for benefits. Kirkwood v. Unemployment Compensation Board of Review, 525 A.2d 841, 844 (Pa. Cmwlth. 1987).
Regarding the work he performed on the farm, the Board found that Claimant performed various duties which including feeding the animals, mowing grass, and carpentry work. (Finding of Fact No. 8.) This finding is amply supported by Claimant's testimony. (N.T. 3/25/11 at 3, 5, 7.) Moreover, Claimant's labor caring for the sheep constitutes the care of "livestock" under section 4(l)(4)(1)(a) of the Law, and his labor maintaining the farm grounds and structures constitutes the "improvement and maintenance" of the farm and its equipment under section 4(l)(4)(1)(b). Thus, the wages Employer paid Claimant for his work on the farm was properly excluded from his base year wages under section 4(l)(4)(1) of the Law.
See section 3 of the Agricultural Area Security Law, Act of June 30, 1981, P.L. 128, as amended, 3 P.S. §903 (defining "livestock and livestock products" as "including cattle, sheep, hogs, goats, horses, poultry...."); Worobec v. Unemployment Compensation Board of Review, 536 A.2d 467, 469-70 (Pa. Cmwlth. 1988) (holding that claimants hired by a farm to raise, maintain, train, and show horses and maintain records related thereto were engaged in agricultural labor because horses constitute livestock under section 4(l)(4)(1)(a) of the Law). See also Samsel v. Uniform Construction Code Board of Appeals of Jefferson Township, 10 A.3d 412, 414-15 (Pa. Cmwlth. 2010) (holding that a proposed horse stable was exempt from the permit requirements of the Pennsylvania Construction Code Act, Act of November 10, 1999, P.L. 491, as amended, 35 P.S. §§7210.101-7210.1103, which excludes "an agricultural building" used to house "livestock or other farm animals").
Regarding the amount of the wages Employer paid him for his casual labor for Mamie Minnich, Claimant testified that he was paid "Maybe $1000 tops" for the fourth quarter of 2009. N.T. 3/25/11 at 5. There is no record evidence showing what portion of the wages Employer paid Claimant in the first or second quarters of 2010 that could be attributed to this casual labor even if it could be separated out from his work on the farm for this period. Thus, Claimant failed to establish the amount of wages that he earned for this casual labor. As a result, the Board did not err in determining that Claimant failed to sustain his burden of proving that he earned sufficient qualifying base year wages under the Law.
See Seley v. Unemployment Compensation Board of Review, 138 A.2d 174, 176 (Pa. Super. 1958) (holding that it is the nature of a claimant's work that is controlling and that where an agricultural worker whose duties consisted of raising, feeding, and caring for pheasants for a hunting preserve performs incidental services including acting as a guide and dog handler during the hunt, such incidental services do not change the nature of his agricultural labor under section 4(l)(4)(1)(a) of the Law). --------
Accordingly, the Board's order is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 21st day of March, 2012, the June 15, 2011, order of the Unemployment Compensation Board of Review is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge
Martin v. Unemployment Compensation Board of Review, 502 Pa. 282, 288, 466 A.2d 107, 109-10 (1983), cert. denied, 466 U.S. 952 (1984) (footnotes omitted). Section 404(a)(3) of the Law has a "step down" provision which allows a claimant who does not have sufficient base year wages to "step down" to the next three lower weekly benefit rates and have his benefits redetermined if he meets the base year requirements of any of these three lower rates. 43 P.S. §804(a)(3); Department of Labor and Industry v. Unemployment Compensation Board of Review, 530 A.2d 129, 130 (Pa. Cmwlth. 1987).
Section 4(a) of the Law defines "base year" as the first four of the last five completed calendar quarters immediately preceding the first day of a claimant's benefit year. 43 P.S. §753. Section 4(l)(1) defines "employment" as all personal service performed for remuneration by a claimant under any contract of hire. 43 P.S. §753(l)(1).
However, section 4(l)(4)(1)(a) and (b) provide that "employment" shall not include agricultural labor: (1) on a farm in connection with cultivating the soil and raising or harvesting agricultural or horticultural commodities including livestock, bees, poultry and fur-bearing animals; or (2) in connection with the operation, management, conservation, improvement or maintenance of the farm and its tools and equipment. 43 P.S. §753(l)(4)(1)(a), (b). Section 4(l)(3)(G)(a) provides exceptions to this agricultural labor exclusion for services performed for an employer who paid remuneration of $20,000.00 or more during any calendar quarter to employees engaged in agricultural labor, or who employed ten or more individuals in agricultural labor for some portion of a day in each of 20 calendar weeks in either the current or preceding calendar years. 43 P.S. §753(4)(l)(3)(G)(a).