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JOSEPH C. MARCHIONE v. COMMONWEALTH PENNSYLVANIA (03/12/81)

decided: March 12, 1981.

JOSEPH C. MARCHIONE, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW AND MONUMENTAL LIFE INSURANCE CO., RESPONDENTS



Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Joseph C. Marchione, No. B-174259.

COUNSEL

John H. Clark, Jr., for petitioner.

Steven R. Shepard, Assistant Secretary and Assistant Counsel, for respondent, Monumental Life Insurance Company.

Judges Mencer, Craig and Williams, Jr., sitting as a panel of three. Opinion by Judge Williams, Jr.

Author: Williams

[ 57 Pa. Commw. Page 440]

Joseph C. Marchione (claimant) appeals from an order of the Unemployment Compensation Board of Review affirming a referee's decision denying him eligibility for unemployment benefits. The referee decided that the claimant, a former insurance agent, had been remunerated for his services "solely by way of commission" in terms of Section 4(l)(4)(17) of the Unemployment Compensation Law (Law),*fn1 and therefore was not eligible by tandem force of Section 401(a) of the Law.*fn2

The issue presented by this case is whether or not a contractually fixed minimum weekly remuneration provided to the agent-claimant during his employment represented a "commission." For, if the minimum was not a commission, but instead wages or salary, then the claimant was not remunerated "solely by way of commission" as to be excluded from unemployment coverage by the above sections of the Law.

[ 57 Pa. Commw. Page 441]

Until December 31, 1978, claimant Marchione worked as a debit agent for the Monumental Life Insurance Company (Monumental) in its Upper Darby, Pennsylvania, office. He had been an agent for Monumental about 43 years; but on the mentioned date he was forced to retire under company rules.

At all times material to this case Marchione was remunerated by Monumental according to the terms of a labor agreement between the employer and claimant's union. The central element in the remuneration scheme was the "sales commission," which was based on the "annualized" premiums from insurance sold by and credited to an agent. An agent's "annualized" premiums were multiplied by a rate from a schedule of rates for various kinds of insurance sold, and the resulting figure was credited to an account called an agent's "sales commission pool." It was from this "pool" that an agent received actual sales commission payments. The amount of weekly sales commission payments was computed by applying a rate from another table of rates to the balance of the sales commission pool. The amount of weekly sales commission payments arrived at through this formula was referred to in the labor agreement as the "sales commission payout."

In addition to the sales commission payout Monumental's agents were contractually eligible for a myriad of other commissions, including one of special significance to this case called the "Seniority Sales Commission." The Seniority Sales Commission, a source of remuneration in addition to the sales commission payout itself, was computed as a percentage of the sales commission payout, with the percentage or rate increasing according to an agent's number of years service with Monumental.

For an agent who had been employed as of February 1966, as was Marchione, there ...


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