Appeal from the Order of the Unemployment Compensation Board of Review in the case of In Re: Claim of Henry A. Coogler, No. B-189292.
Theodore A. Tenor, for petitioner.
Charles Hasson, Associate Counsel, for respondent, Unemployment Compensation Board of Review.
R. James Reynolds, Jr., Pepper, Hamilton & Scheetz, of counsel: Charles W. Muller, for respondent, The Equitable Life Assurance Society of the United States.
President Judge Crumlish, Jr. and Judges Rogers and Blatt, sitting as a panel of three. Opinion by President Judge Crumlish, Jr. Judge Palladino did not participate in the decision in this case.
[ 64 Pa. Commw. Page 457]
Henry A. Coogler appeals an Unemployment Compensation Board of Review order denying him benefits. We affirm.
Coogler, an insurance agent with Equitable Life Assurance Society, entered into an employment contract under which his only remuneration would be commissions. The Board affirmed a referee's decision which held that Coogler had insufficient earnings, under Section 404 of the Unemployment Compensation Law,*fn1 to qualify for benefits. We agree.
[ 64 Pa. Commw. Page 458]
Our scope of review where the party with the burden of proof has not prevailed before the Board is limited to a determination of whether the findings of the Board can be sustained without a capricious disregard of competent evidence. Dennis v. Unemployment Compensation Page 458} Board of Review, 55 Pa. Commonwealth Ct. 215, 423 A.2d 458 (1980).
The referee's decision was based on the conclusion that Section 4(1)(4)(17)*fn2 of the Act specifically excludes from the definition of employment:
(17) Service performed by an individual for an employer as an insurance agent . . . if all such service performed by such individual for such employer is performed for remuneration solely by way of commission. . . .
The Board concluded that Section 4(1)(4)(17) applied because Coogler had entered into an employment contract with Equitable which called for remuneration by way of full commission rather than on a salary basis. Based on this contractual change the Board held that the amounts earned during the third and fourth quarters of the base year were not includible in computing eligibility for benefits because they were not "wages" under ...