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BEISTLE COMPANY v. COMMONWEALTH PENNSYLVANIA (03/31/83)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: March 31, 1983.

THE BEISTLE COMPANY, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT

Appeal from the Order of the Unemployment Compensation Board of Review in the case of In Re: Claim of Malgram Jones, Jr., No. B-187847.

COUNSEL

Kenneth F. Lee, for petitioner.

John T. Kupchinsky, Associate Counsel, with him Richard L. Cole, Jr., Chief Counsel, for respondent.

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

Author: Doyle

[ 73 Pa. Commw. Page 205]

This is an appeal by The Beistle Company from the decision and order of the Unemployment Compensation

[ 73 Pa. Commw. Page 206]

Board of Review (Board) which affirmed the decision of a referee granting partial unemployment compensation benefits to Malgram Jones, Jr. (Claimant). For the reasons which follow, the order of the Board is affirmed.

The facts are not in dispute. Claimant, who was employed as a machine operator for Beistle, had a regular work schedule of four, nine-hour shifts, Monday through Thursday. From December 21, 1979 through January 6, 1980, Claimant did not work. Claimant's absence during this period was the result of nine regular days off, three voluntary vacation days, three holidays*fn1 and two unexplained absences. Although he never actually reported for work, Claimant received gross pay of $138.86 for the week ending December 29, 1979. This pay included $55.25 for two voluntary vacation days and a production bonus of $83.66. Similarly, for the period ending January 5, 1980, Claimant received gross pay of $152.26 which included $27.60 for one voluntary vacation day and an annual bonus of $124.66. Claimant, whose regular gross pay was $124.20 per week, applied for partial unemployment compensation benefits for these two weeks. The referee's award of partial benefits was, in effect, based upon the decision to exclude these bonuses from consideration of Claimant's eligibility for the weeks in question. After the Board affirmed the referee's award, Beistle appealed to this Court.

Section 401 of the Unemployment Compensation Law (Law)*fn2 provides that compensation is payable to any employee who is or becomes unemployed. Section

[ 73 Pa. Commw. Page 2074]

(u) of the Law, 43 P.S. ยง 753(u), defines "unemployed" and provides, in pertinent part, that:

An individual shall be deemed unemployed . . . with respect to any week of less than his full-time work if the remuneration paid or payable to him with respect to such week is less than his weekly rate plus his partial benefit credit.

The only issue presented here is whether the production bonus and the annual bonus were properly excluded from the calculations which determined Claimant's eligibility for partial benefits for the weeks ending December 29, 1979 and January 5, 1980. We conclude that the Board's application of the law in excluding these bonuses was correct.

The mere receipt of a payment during the same week that compensation benefits are sought is not enough to include that payment in the equation which will determine a claimant's eligibility for benefits. As set forth above, the test of Section 4(u) of the Act requires that payments be made with respect to such week that unemployment benefits are sought. As Judge MacPhail noted in Hock v. Unemployment Compensation Board of Review, 50 Pa. Commonwealth Ct. 517, 522, 413 A.2d 444, 446-447 (1980):

Merely because the payments were made during the weeks at issue does not mean that they were made with respect to those weeks. The Unemployment Compensation Law does not define the term "remuneration." The standard judicial definition of the term, however, is "payment for services performed." Gianfelice Unemployment Compensation Case, 396 Pa. 545, 555, 153 A.2d 906, 911 (1959). The question, then, is when were the services performed for which Claimant received payment. (Emphasis in original.)

The production bonus, which was received during the week ending December 29, 1979 corresponds to

[ 73 Pa. Commw. Page 208]

Beistle's production in November. The annual bonus, received during the week ending January 5, 1980, equals two percent of an employee's earnings in 1979. Clearly, although the bonuses were received during the weeks in question, they were not paid with respect to those weeks.

We therefore affirm the order of the Unemployment Compensation Board of Review.

Order

Now, March 31, 1983, the order of the Unemployment Compensation Board of Review, at number B-187847, dated September 16, 1980, is hereby affirmed.

Disposition

Affirmed.


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