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LEWIS J. BIEVENOUR v. COMMONWEALTH PENNSYLVANIA (05/17/79)

decided: May 17, 1979.

LEWIS J. BIEVENOUR, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Lewis J. Bievenour, No. B-145757.

COUNSEL

Rajeshwar Kumar, for petitioner.

Michael D. Klein, Assistant Attorney General, with him James K. Bradley, Assistant Attorney General, Daniel R. Schuckers, Assistant Attorney General, and Gerald Gornish, Acting Attorney General, for respondent.

Judges Crumlish, Jr., Blatt and MacPhail, sitting as a panel of three. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 42 Pa. Commw. Page 617]

The Unemployment Compensation Board of Review disallowed the appeal of Lewis J. Bievenour (Bievenour) from a referee's denial of benefits. He appeals to us. We affirm.

Is Section 4(1)(4)(5) of the Unemployment Compensation Law*fn1 (Act) which provides that the word "employment" shall not include "service performed by an individual in the employ of his son, daughter, or spouse, and service performed by a child under the age of eighteen (18) in the employ of his father or mother" constitutional? Bievenour, last employed as a carpenter by a hardware store under the sole proprietorship

[ 42 Pa. Commw. Page 618]

    of his son was declared ineligible for benefits by a referee who found he was not engaged in "covered" employment under the Act. He argues that the statute, by declaring him ineligible because he is the father of an employer whereas children of an employer 18 years or older are eligible, unconstitutionally discriminates against him on the basis of age in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.*fn2

The right to receive unemployment compensation benefits in Pennsylvania is a statutory right and, as such, has statutory provision limitations but, where a state law defines eligibility for statutory entitlement, that eligibility is subject to the protection of the Fourteenth Amendment and may "not be limited in any way that works an invidious discrimination or constitutes a denial of due process." Hammond v. Marx, 406 F. Supp. 853, 855 (D. Maine 1975).

Entitlement to unemployment compensation benefits, however, is not a fundamental right and classification by age does not constitute a suspect classification. Hammond v. Marx, supra. Thus, the age classification established by the statute is a valid one if it is grounded upon some reasonable basis; that

[ 42 Pa. Commw. Page 619]

    the classification made by the state is not perfect or results in some inequality in practice does not offend the Constitution. ...


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