Opinion
No. 1407 C.D. 2012
02-07-2013
Taras Zhyhaylo, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
Taras Zhyhaylo (Claimant) petitions for review of the decision and order of the Unemployment Compensation Board of Review (Board), holding that he is ineligible for unemployment compensation benefits because his base year earnings do not satisfy the financial eligibility requirements of the Unemployment Compensation Law. We affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §§ 751-914.
Claimant was employed by Petura, Inc. (Petura), the managing agent of the condominium association for the development where he lives, for three weeks in June 2011 cleaning up and fixing the pool area of the condominium development to correct a violation notice received from the City of Philadelphia. (Record Item (R. Item) 7, Referee's Decision and Order, Findings of Fact (F.F.) ¶2; R. Item 9, Board Decision and Order; R. Item 6, Referee's Hearing Transcript (H.T.) at 3-5 & Claimant Ex. 1.) Claimant's compensation was $1,200 for each of the first two weeks of this work and $1,258.76 for the third week, and he was paid a single lump sum of $3,658.76 by Petura on September 30, 2011. (R. Item 7, F.F. ¶3; R. Item 6, H.T. at 3 & Claimant Ex. 1; R. Item 3, Service Center Ex. 2b Earnings Statement attached to Petition for Appeal of Service Center Determination.)
On March 11, 2012, Claimant filed an application for benefits. (R. Item 7, F.F. ¶1.) The Unemployment Compensation Service Center denied Claimant's application for benefits on the grounds that he did not satisfy the financial eligibility requirements, stating that during his base year of October 1, 2010 to September 30, 2011, "our records show that no wages were reported by any employer(s) under the Social Security Account Number you furnished to us." (R. Item 2, Notice of Financial Determination.) Claimant appealed this denial, and submitted in support of his appeal a copy of the pay stub Earnings Statement from Petura showing that he was paid $3,658.76 on September 30, 2011. (R. Item 3, Petition for Appeal of Service Center Determination.)
A claimant's "base year" is the first four of the last five completed calendar quarters immediately preceding the first day of his "benefit year," which begins the day the application for benefits is filed. Sections 4(a) and (b) of the Unemployment Compensation Law, 43 P.S. § 753(a), (b).
On May 8, 2012, the Referee conducted a hearing at which Claimant was represented by counsel. (R. Item 6, H.T. at 1.) At this hearing, Claimant testified that he had not worked since his three-week employment with Petura ended. (R. Item 6, H.T. at 2, 6.) No evidence was submitted that Claimant had any employment prior to the three-week employment with Petura, nor was any evidence submitted that Claimant had previously qualified for benefits or filed any prior claim for benefits.
On May 9, 2012, the Referee issued a decision affirming the Service Center's determination and finding Claimant financially ineligible for benefits. (R. Item 7, Referee's Decision at 2.) The Referee found that Claimant's base year for determining his financial eligibility for benefits was the period from October 1, 2010 to September 30, 2011, and that Claimant had no wages or employment in that period other than his work for Petura. (R. Item 7, F.F. ¶¶1, 2, 4.) The Referee concluded that this limited employment was insufficient to satisfy the statutory eligibility requirements because it did not constitute wages earned in at least two calendar quarters of his base year. (R. Item 7, Referee's Decision at 2.)
Claimant appealed the Referee's decision to the Board, asserting that the Referee erred because Claimant's application for benefits was allegedly a re-qualification for benefits and he therefore allegedly needed to show only that his earnings were at least "six times his weekly benefit rate since the beginning of the benefit year." (R. Item 8, Petition for Appeal of Referee's Decision.) Claimant also asserted in that appeal that his "benefit amount was $558.00." (R. Item 8, Petition for Appeal of Referee's Decision.) Claimant, however, did not identify any prior application for benefits, submit any information indicating that he had filed any application for benefits in the past or financially qualified for benefits for any prior year or explain on what his alleged benefit amount of $558 was based.
The Board affirmed the Referee's decision denying benefits. The Board found that Claimant's work for Petura was for a three-week period consisting of "the week ending June 17, 2011, the week ending June 24, 2011 and the final week ending June 30, 2011," and otherwise adopted and incorporated the Referee's findings. (R. Item 9, Board Decision and Order.) The Board held that the test of six times a benefit amount applies to purging a prior disqualification and does not apply to a claimant's obligation to prove that he had sufficient employment in his base year to satisfy the financial eligibility requirements of the Unemployment Compensation Law. (R. Item 9, Board Decision and Order.) The Board concluded that Claimant's only employment in his base year, his work for Petura, was insufficient to meet the financial eligibility requirements because it was earned entirely in one calendar quarter. (R. Item 9, Board Decision and Order.) Claimant filed the instant petition for review appealing the Board's order to this Court.
Our scope of review of the Board's decision that Claimant is financially ineligible for benefits is limited to determining whether necessary findings of fact are supported by substantial evidence, whether the adjudication is in accordance with the law and whether constitutional rights were violated. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704; Pagliei v. Unemployment Compensation Board of Review, 37 A.3d 24, 25 n.7 (Pa. Cmwlth. 2012).
It is Claimant's burden to prove that he is financially eligible for benefits. Pagliei v. Unemployment Compensation Board of Review, 37 A.3d 24, 26 (Pa. Cmwlth. 2012); Jackson v. Unemployment Compensation Board of Review, 933 A.2d 155, 157 (Pa. Cmwlth. 2007).
To be financially eligible for benefits, a claimant must satisfy the earnings requirements of Sections 401 and 404 of the Unemployment Compensation Law for his base year. 43 P.S. §§ 801(a), 804. Section 401(a) requires that Claimant have "within his base year, been paid wages for employment as required by section 404(c) of this act." 43 P.S. § 801(a). With respect to this application for benefits, Section 404(c) provides that "[n]otwithstanding any other provision of this act, any employe with less than sixteen (16) 'credit weeks' during the employe's base year shall be ineligible to receive any amount of compensation." 43 P.S. § 804(c). Section 4(g.1) defines "credit week" as "any calendar week in an individual's base year with respect to which he was paid in employment as defined in this act, remuneration of not less than fifty dollars ($50)" and provides that "[o]nly one credit week can be established with respect to any one calendar week." 43 P.S. § 753(g.1).
The language of Sections 4(g.1), 401(a) and 404(c) of the Unemployment Compensation Law quoted and applied in this opinion has been amended by the Act of June 17, 2011, P.L. 16, No. 6, §§ 1, 5, and the Act of June 12, 2012, P.L. 577, No. 60, §§ 1, 10, 11. However, those amendments were not effective until after December 31, 2012, and therefore do not apply to this application for benefits. Section 4(g.1) was added by the Act of July 10, 1980, P.L. 521, as amended, 43 P.S. § 753(g.1).
Thus, "[t]o be eligible, an employee must have earned no less than $50 for at least 16 weeks during the five calendar quarters preceding the first day of the claimant's unemployment." Earnest v. Unemployment Compensation Board of Review, 30 A.3d 1249, 1254 (Pa. Cmwlth. 2011). This requirement is designed to demonstrate that the claimant was genuinely attached to the labor force. Poola v. Unemployment Compensation Board of Review, 520 Pa. 562, 567-68, 555 A.2d 97, 99 (1989); Lopata v. Unemployment Compensation Board of Review, 507 Pa. 570, 576, 493 A.2d 657, 661 (1985); see also Martin v. Unemployment Compensation Board of Review, 502 Pa. 282, 288, 297, 466 A.2d 107, 110, 114 (1983).
The record is clear that Claimant did not satisfy the requirement of Section 404(c) that he have earned wages over a total of at least 16 separate weeks. Claimant worked only three weeks; the letter supplied by his employer stated that all of his work was during the weeks ending June 17, June 24 and July 1, 2011 and that his work was completed by June 30, 2011. (R. Item 6, H.T. Claimant Ex. 1.) Claimant therefore had only three credit weeks of employment in his base year. Because Claimant did not have the minimum credit weeks required by Section 404(c), he is ineligible for benefits. Earnest, 30 A.3d at 1254; Kephart v. Unemployment Compensation Board of Review, 467 A.2d 1210, 1212 (Pa. Cmwlth. 1983); Briglia v. Unemployment Compensation Board of Review, 452 A.2d 900, 901 (Pa. Cmwlth. 1982).
The Board argues that Claimant also failed to satisfy the requirement of Section 401(a) "[t]hat not less than twenty per centum (20%) of [his] total base year wages have been paid in one or more quarters, other than the highest quarter in such employe's base year," 43 P.S. § 801(a), because all of his wages were earned in a single month, June 2011. (Respondent's Brief at 5.) Section 401(a), however, requires that the wages have been paid in more than one quarter, not that they have been earned in more than one quarter and the dates of Claimant's work are not dispositive of this issue. See Gibson v. Unemployment Compensation Board of Review, 682 A.2d 422, 423-24 (Pa. Cmwlth. 1996) (claimant's wages for work in March attributed to second quarter because regular payday for those wages was April 1). Under the general rule that "[w]ages are considered paid on the date when the employer actually pays them," 34 Pa. Code § 61.3(a)(1), Claimant does not satisfy Section 401(a)'s requirements because Petura actually paid him all of his wages in a single month, September 2011. (R. Item 3, Service Center Ex. 2b Earnings Statement attached to Petition for Appeal of Service Center Determination.) The Board's regulations, however, also provide that "[f]or purposes of benefits, if payment of wages is delayed, the wages are considered paid on the date when the employer generally pays amounts definitely assignable to a payroll period." 34 Pa. Code § 61.3(a)(2). Under that rule, it is possible that Claimant may have satisfied the requirement that no more than 80% of his wages have been paid in a single quarter because the last week that Claimant worked ended on July 1, 2011. We need not resolve this issue because Claimant's three-week employment clearly failed to satisfy Section 404(c). --------
Claimant does not dispute that he failed to meet the 16-credit week requirement of Section 404(c). Rather, he argues only that he was financially eligible for benefits because his earnings were greater than six times an alleged weekly benefit rate of $558. (Petitioner's Brief at 7.) That, however, does not excuse Claimant from showing that he has satisfied the requirements of Section 404(c).
The eligibility test of six times the weekly benefit rate is set forth in two sections of the Unemployment Compensation Law, Section 401(f) and Section 4(w)(2). 43 P.S. § 801(f); 43 P.S. § 753(w)(2). Under Section 401(f), a claimant who would meet the financial eligibility requirements of Sections 401(a) and 404(c), but has been disqualified by the reasons for termination of his employment, is eligible for benefits if he "[h]as earned, subsequent to his separation from work under circumstances which are disqualifying under the provisions of subsections 402(b), 402(e), 402(e.1) and 402(h) of this act, remuneration for services in an amount equal to or in excess of six (6) times his weekly benefit rate in 'employment' as defined in this act." 43 P.S. § 801(f). Section 401(f) thus only purges a disqualification and permits consideration of earnings and weeks from an earlier employment which terminated under disqualifying circumstances in determining whether the claimant meets the financial eligibility requirements. Earnest, 30 A.3d at 1254; Grossinger v. Unemployment Compensation Board of Review, 485 A.2d 80, 82 (Pa. Cmwlth. 1984). Section 401(f) has no applicability to claimants whose ineligibility is due solely to failure to have any employment that satisfies the financial eligibility requirements. Grossinger, 485 A.2d at 82. Because there is no evidence that Claimant was disqualified from benefits under Section 402 and no evidence that he had any employment in his base year sufficient to satisfy Section 404(c)'s financial eligibility requirement, Section 401(f) does not apply to Claimant and cannot make him eligible for benefits.
Section 4(w)(2) is likewise inapplicable here. Section 4(w)(2) provides:
An application for benefits filed after the termination of a preceding benefit year by an individual shall not be considered a Valid Application for Benefits within the meaning of this subsection, unless such individual has, subsequent to the beginning of such preceding benefit year and prior to the filing of such application, worked and earned wages, whether or not such work is in "employment" as defined in this act in an amount equal to or in excess of six (6) times his weekly benefit rate in effect during such preceding benefit year.43 P.S. § 753(w)(2). This Section thus applies only where a claimant has been found financially eligible under Sections 401(a) and 404(c) for a prior benefit year and has received benefits for a prior year. There is no evidence in this record that Claimant qualified for benefits in any prior benefit year. Although Claimant in his brief refers to an alleged "ending of his first benefit year period in May 28, 2011" (Petitioner's Brief at 5) and he stated in his appeal to the Board that his application was for a "re-qualification" for benefits (R. Item 8, Petition for Appeal of Referee's Decision (emphasis omitted)), there is nothing in the record showing that Claimant had previously qualified for benefits or ever even applied for benefits prior to this application.
Moreover, even if Claimant had shown a previous application and qualification for benefits, Section 4(w)(2) would still not permit him to avoid satisfying the credit week requirement of Section 404(c). Section 4(w)(2) imposes an additional requirement for eligibility, not an alternative test for eligibility - it states that an otherwise valid application for a second benefit year "shall not be considered a Valid Application for Benefits ... unless" the claimant satisfies the requirement of earnings six times his prior weekly benefit rate, 43 P.S. § 753(w)(2), not that the claimant is eligible for benefits if he has earnings six times his prior weekly benefit rate. Indeed, the language of Section 404(c) makes clear that Section 4(w)(2) cannot override its credit week minimum. Section 404(c) expressly provides that "[n]otwithstanding any other provision of this act, any employe with less than sixteen (16) 'credit weeks' during the employe's base year shall be ineligible to receive any amount of compensation." 43 P.S. § 804(c) (emphasis added).
For the foregoing reasons, we affirm the Board's denial of benefits.
/s/_________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 7th day of February, 2013, the order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby AFFIRMED.
/s/_________
JAMES GARDNER COLINS, Senior Judge