decided: May 9, 1983.
LOUIS J. HAWRYLAK, PETITIONER
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT. ALVIN C. MOYER, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT. NICK CHUBAROV, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT. HARRY J. LOGUE, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT
Appeals from the Orders of the Unemployment Compensation Board of Review in cases of In re: Claim of Louis J. Hawrylak, No. B-189490; Claim of Alvin C. Moyer, No. B-189403; Claim of Nick Chubarov, No. B-190887, and Claim of Harry J. Logue, No. B-204618.
John Stember, with him Mark P. Cancilla, Regis J. McNally and Deborah Comay, for petitioners.
John T. Kupchinsky, Associate Counsel, with him Richard L. Cole, Jr., Chief Counsel, for respondent.
Judges Blatt, Williams, Jr. and Craig, sitting as a panel of three. Opinion by Judge Williams, Jr.
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Claimants*fn1 appeal Unemployment Compensation Board of Review (Board) orders affirming referees' decisions upholding the Office of Employment Security's
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(OES) deduction of claimants' social security old age payments and pensions from their unemployment weekly benefit rates pursuant to Section 404(d)(iii) of the Unemployment Compensation Law (Law).*fn2 We affirm.
The facts are not in dispute. Claimants either retired or were laid off by their respective employers due to lack of work. During 1980 and 1981, claimants applied for unemployment compensation benefits. Although the OES found claimants eligible for unemployment benefits, under Section 404(d)(iii) of the Law*fn3 each individual's weekly benefit rate was reduced by the amount of social security and private pension payments received.*fn4
Although the OES offsetting of designated disqualifying wage-replacement income against unemployment compensation benefits was done pursuant to Section 404(d)(iii), and notwithstanding that Section 404(d)(iii) was the sole basis for, and the exclusive statutory provision referenced in the Board's adjudication, claimants challenge, on constitutional and other grounds, Section 3304(a)(15) of the Federal
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Unemployment Tax Act (FUTA), 26 U.S.C. § 3304(a)(15).*fn5
Claimants primarily contend that Section 3304(a)(15) of FUTA denies them equal protection in violation of the Due Process clause of the Fifth Amendment of the United States Constitution; that the federal statute embodies an unconstitutional presumption that all pension recipients are retired; that
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the federal statute impairs the obligation of contracts (presumably in violation of Article 1, Section 10 of the United States Constitution); that the federal statute operates as a Bill of Attainder. For reasons set forth below, we are constrained to dismiss claimants' appeal without addressing the merits.
While this Court has jurisdiction to decide cases involving federal statutes and federal constitutional rights, Klesh v. Department of Public Welfare, 55 Pa. Commonwealth Ct. 587, 591, 423 A.2d 1348, 1350 (1980), "it is axiomatic 'that matters not properly raised in, or considered by, the tribunal below, cannot be considered on appeal, even though such matters involve constitutional questions.'" Green v. Commonwealth of Pennsylvania, 67 Pa. Commonwealth Ct. 41, 45, 445 A.2d 1341, 1343 (1982) (quoting Amos v. Commonwealth ex rel. Borough of Waynesborg, 44 Pa. Commonwealth Ct. 547, 549-50, 404 A.2d 743, 744 (1979) (citations omitted)).*fn6
Thus, the contention of claimants Moyer and Hawrylak regarding Section 3304(a)(15) of FUTA are not properly before this Court. See, Nytiaha v. Unemployment Compensation Board of Review, 56 Pa. Commonwealth Ct. 564, 568-69, 425 A.2d 485, 487-88 (1981). Nothing in their respective records indicates that either claimant, despite ample opportunities, raised the challenges to Section 3304(a)(15) of FUTA or Section 404(d)(iii) before the unemployment compensation authorities. See, 2 Pa. C.S. § 703(a);
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affected claimants, or of a necessity to consider the validity of the federal statutory provision in order to rule on these claims, we must conclude that claimants are improperly urging this Court to render an advisory opinion on an abstract legal question, to wit: the constitutionality and general validity of Section 3304(a)(15) of FUTA. See, Pennsylvania Power and Light Company v. Pennsylvania Public Utility Commission, 43 Pa. Commonwealth Ct. 252, 256-58, 401 A.2d 1255, 1257-58 (1979); Klesh, 55 Pa. Commonwealth Ct. at 591, 423 A.2d at 1350. For it is axiomatic that
a court will take jurisdiction [of a question of unconstitutionality] only in a case in which a challenged statute, ordinance, or rule of court has been actually applied to a litigant; it does not undertake to decide academically the unconstitutionality or other alleged invalidity of legislation until it is brought into operation so as to impinge upon the rights of some person or persons. (Emphasis supplied.)
Home Life Insurance Co. of America v. Board of Adjustment, 393 Pa. 447, 453, 143 A.2d 21, 24 (1958) (quoting Knup v. City of Philadelphia, 386 Pa. 350, 353, 126 A.2d 399, 400 (1956)).
Finally, although claimants Logue and Chubarov raised constitutional questions regarding Section 404(d)(iii) below, claimants' brief inexplicably failed to address and challenge the legitimacy of the state pension offset provision. Since questions regarding the constitutionality and validity of Section 404(d)(iii) were neither raised nor addressed in claimants' brief, we therefore find it unnecessary to address these questions. See, Commonwealth v. Jackson, 494 Pa. 457, 431 A.2d 944 (1981) (issue waived when raised in "Statement of Questions Involved" portion
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of brief but not addressed in "Argument" portion of brief); Czitrom v. Unemployment Compensation Board of Review, 52 Pa. Commonwealth Ct. 537, 416 A.2d 109 (1980) (issue waived when raised in oral argument but set forth in neither the "Statement of Questions Involved" nor "Argument" portion of brief).
Accordingly, as to each claimant, the decision of the Board is affirmed.
And Now, the 9th day of May, 1983, the orders of the Unemployment Compensation Board of Review, at Decision Nos. B-189490, B-189403, B-190887, and B-204618, are affirmed.