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MALCOLM W. LEWIS v. COMMONWEALTH PENNSYLVANIA (01/27/83)

decided: January 27, 1983.

MALCOLM W. LEWIS, 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 Malcolm W. Lewis, No. B-180493.

COUNSEL

James R. Jenks, Shamp, Levin, Arduini, Jenks & Hain, for petitioner.

Charles G. Hasson, Associate Counsel, with him Richard L. Cole, Jr., Chief Counsel, for respondent.

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

Author: Blatt

[ 71 Pa. Commw. Page 413]

Malcolm W. Lewis (claimant) appeals an order of the Unemployment Compensation Board of Review (Board) which adopted a referee's decision to deny him benefits.

The facts are not in dispute. The claimant's last day of work was September 29, 1978 when he was separated from his employment due to mandatory retirement. On October 6, 1978, he filed an application for benefits with an effective date of October 1, 1978 thereby establishing as his base year the third and fourth quarters of 1977 and the first and second quarters of 1978. Benefits were granted in the sum of $4,290 at a weekly rate of $143 until his benefit year ended*fn1 on September 29, 1979. On or about October 5, 1979, he then filed a further application for benefits with an effective date of September 30, 1979 but on October 11, 1979 the Office of Employment Security found him to be ineligible for benefits because his $4,380 in wages during his base year fell short of the $6,000 base year requirement under Section 404 of the Unemployment Compensation Law (Act).*fn2 A claimant's base year, as provided by Sections 401(a)*fn3 and 404 of the Law, is determined by his qualifying wages from the first four of the last five completed calendar quarters immediately preceding the first day of his benefit year. Under his application effective

[ 71 Pa. Commw. Page 414]

September 30, 1979, the claimant's base year consisted of the second, third, and fourth quarters of 1978 and the first quarter of 1979. The referee and the Board, however, determined that, inasmuch as

     the claimant's qualifying wages in the second quarter of 1978 were used in determining the claimant's financial eligibility under the prior application, they cannot, consistently with the purposes of the Pennsylvania Unemployment Compensation Law and the provisions of Sections 401 and 404 thereof, be used in determining financial eligibility under a subsequent application.

The claimant, in his statement of the questions presented by his appeal, argues (1) that the Board should not follow arbitrary rules and regulations and, in an isolated case such as his, should make an exception; (2) that his ineligibility was not caused by his inadequate earnings but by the Board's procedure in determining his benefit year; and; (3) that the Act's procedures for determining a benefit year are inconsistent with its underlying purposes because these procedures deprive him of his entitlement based upon his earnings.

Regarding the claimant's first argument, he cites no case law or statutory provision of the Act which would enable the Board to make a special exception for him. In fact, were the Board to do so, it would be in violation of the remedial scheme set forth by the legislature.

His second argument, which we believe to be somewhat vague, actually seems to fall within the borders of his third argument which challenges the Act's procedure for determining a benefit year, suggesting that such a procedure violates constitutional ...


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