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ZDZISLAW FELCYN v. COMMONWEALTH PENNSYLVANIA (05/25/82)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: May 25, 1982.

ZDZISLAW FELCYN, 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 Zdzislaw Felcyn, No. B-184044.

COUNSEL

H. Charles Markofski, with him Henry C. Markofski and James A. Cunningham, Markofski and Cunningham, for petitioner.

Charles Hasson, Associate Counsel, with him Stephen B. Lipson, Assistant Chief Counsel, Richard Wagner, Counsel, and Richard L. Cole, Jr., Chief Counsel, for respondent.

Judges Craig, MacPhail and Doyle, sitting as a panel of three. Opinion by Judge MacPhail. Judge Mencer did not participate in the decision in this case.

Author: Macphail

[ 66 Pa. Commw. Page 584]

The Petitioner, Zdzislaw Felcyn, seeks review of a determination of the Unemployment Compensation Board of Review (Board) that he is ineligible for Trade Readjustment Allowance (TRA) benefits under the Trade Act of 1974 (Trade Act), 19 U.S.C. § 2101-2487 (1976) (amended 1981).*fn1

The findings of the referee, which were accepted by the Board, are uncontested here. Petitioner was

[ 66 Pa. Commw. Page 585]

    employed as a tire builder by Lee Tire Company for over eleven years. From April 23, 1979 to January 2, 1980 Petitioner was absent from work due to a work related injury, for which he received workmen's compensation benefits. Petitioner returned to work on January 2, 1980, and continued to work until January 30, 1980, when he was laid off due to lack of work. Petitioner thereafter applied for TRA benefits.

The Trade Act established a federal program providing for the payment of TRA benefits to workers in certain industries who are certified by the Secretary of Labor as being persons adversely affected by unfair or injurious import competition.*fn2 While the program is conducted under the auspices of the United States Department of Labor, it is administered through the state's unemployment compensation bureaus. In order to be eligible for TRA benefits, an employee in a certified industry must meet several criteria, one of which is that the employee "had, in the 52 weeks immediately preceding such total or partial separation, at least 26 weeks of employment at wages of $30 or more a week in adversely affected employment with a single firm or subdivision of a firm." 19 U.S.C. § 2291(2). This requirement is also embodied in the Department of Labor's own regulations. See 29 C.F.R. § 91.7(c).

In this case, Petitioner has been uniformly denied TRA benefits below because of a determination that during the 52 weeks immediately preceding his January 30, 1980, separation he worked only a total of 19 weeks. Petitioner does not deny that he was on the job no more than 19 weeks; rather, he contends that the 33 weeks of absence while on workmen's compensation

[ 66 Pa. Commw. Page 586]

    should be considered "employment at wages of $30 or more a week," or, in the alternative, that the 33 weeks of absence should be ignored for purposes of determining the "52 weeks immediately preceding" separation. Under either computation, Petitioner presumably would then be eligible for TRA benefits. Petitioner contends that since the Trade Act requires that the availability and disqualification provisions of the State unemployment compensation law be applied to any worker who files for TRA benefits, see 19 U.S.C. § 2294, and in view of the fact that he is currently qualified for unemployment compensation, then he should be found to have met the requirements for TRA benefits.

Initially, we find Petitioner's argument that he is eligible for TRA benefits because he is eligible for unemployment compensation to be meritless. As this Court has stated previously in regards to this argument:

The fact that the claimant was awarded Pennsylvania unemployment compensation benefits does not determine his entitlement to TRA benefits. While the federal statute and regulations provide that the disqualifying provisions of state unemployment insurance law also apply to claims for TRA benefits, TRA claimants still must meet the additional qualifying requirements set forth in the federal statute and regulations. The disqualifying provisions of state law merely supplement the federal provisions. Accordingly, not all individuals eligible for state unemployment compensation are eligible for TRA benefits.

Mosqueda v. Unemployment Compensation Board of Review, 60 Pa. Commonwealth Ct. 242, 246, 431 A.2d 371, 373 (1981).

[ 66 Pa. Commw. Page 587]

As for Petitioner's contention that his absence should be counted as "weeks of employment," we again find that prior case law requires a negative answer. This Court has decided that work related absences should not be counted as "weeks of employment." See Deemer v. Unemployment Compensation Board of Review, 58 Pa. Commonwealth Ct. 46, 426 A.2d 1277 (1981) (on sick leave due to back problem); Long v. Unemployment Compensation Board of Review, 56 Pa. Commonwealth Ct. 174, 424 A.2d 587 (1981) (employee on vacation leave); Ford v. Unemployment Compensation Board of Review, 48 Pa. Commonwealth Ct. 580, 409 A.2d 1209 (1980) (employee on vacation leave). We find no legitimate reason to distinguish those cases, particularly the Deemer sick leave case, from the present injury related absence here.*fn3

Finally, we come to Petitioner's argument that his period of absence should be ignored in determining the qualifying period of 52 weeks prior to his termination. Petitioner has cited no authority for this proposition to us. Our own research discloses only one case, Hulet v. Review Board of Indiana Employment Security Division, Ind. App. , 412 N.E.2d 289 (1980) where a period of time was exempted out of the 52 immediately preceding weeks. That case, however, depended upon a specific federal exemption for military service leave provided in the Veterans' Readjustment Assistance Act of 1972, 38 U.S.C. § 2013

[ 66 Pa. Commw. Page 588]

(1976),*fn4 and thus is inapposite here. We therefore hold that the time spent on work related disability leave is not exempted out of the 52 "immediately preceding" weeks. Petitioner therefore has failed to show that he has had 26 weeks of eligible employment in the preceding 52 weeks; thus, he is ineligible for TRA benefits.*fn5

We affirm.

Order

It is ordered that the decision of the Unemployment Compensation Board of Review, Decision No. B-184044, date May 14, 1980, is hereby affirmed.

Judge Mencer did not participate in the decision in this case.

Disposition

Affirmed.


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