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RUSSELL L. SWACKHAMMER v. COMMONWEALTH PENNSYLVANIA (12/05/84)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: December 5, 1984.

RUSSELL L. SWACKHAMMER, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT. HAZEL D. ELLENBERGER, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT. CYNTHIA LYNN FLORAVIT, 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: Claims of Russell L. Swackhammer, No. B-213558, Hazel D. Ellenberger, No. B-216306, and Cynthia Lynn Floravit, No. B-217765.

COUNSEL

John R. Fernan, Cartwright, Fernan & Whitnew, for petitioners.

Richard F. Faux, Associate Counsel, with him, Charles G. Hasson, Acting Deputy Chief Counsel, for respondent.

Judges Williams, Jr., Craig and Doyle, sitting as a panel of three. Opinion by Judge Williams, Jr.

Author: Williams

[ 86 Pa. Commw. Page 294]

Russell L. Swackhammer, Hazel D. Ellenberger and Cynthia Lynn Floravit (Claimants) appeal from Unemployment Compensation Board of Review decisions which affirmed a referee's determinations that Claimants were financially ineligible for benefits under Section 404 of the Unemployment Compensation Law (Law).*fn1

The sole question is whether workmen's compensation benefit payments were improperly excluded

[ 86 Pa. Commw. Page 295]

    from the calculation of base year wages for the purposes of determining Claimants' financial eligibility for unemployment compensation. To qualify for unemployment benefits, an eligible claimant must be attached to the labor force as determined by the amount of wages earned in a base year.*fn2

Claimants had insufficient base year wages under Section 404, because the referee (as affirmed by the board) determined that Claimants' workmen's compensation benefit payments were not wages within the intendment of Section 4(x) of the Law,*fn3 and could not, therefore, be included in base year wages necessary for financial eligibility.

Section 4(x) defines "wages," in pertinent part, as including "all remuneration . . . paid by an employer to an individual with respect to his employment." Essential to the definition of "wages" as including all remuneration paid with respect to employment is the meaning of the terms "employment" and "remuneration." "Employment" means "all personal service performed for remuneration," Section 4(1)(1) of the Law,*fn4 and "remuneration," while not statutorily defined, has been judicially interpreted to mean "payment for services performed." The Beistle Company v. Unemployment Compensation Board of Review, 73 Pa. Commonwealth Ct. 205, 207, 457 A.2d 1029, 1030 (1983) (citing Gianfelice Unemployment Compensation Case, 396 Pa. 545, 555, 153 A.2d 906, 911 (1959)). Consequently, the inclusion of workmen's

[ 86 Pa. Commw. Page 296]

    compensation benefits in base year qualifying wages requires that such payments be made in consideration of personal services performed by Claimants.

In Karamanian v. Unemployment Compensation Board of Review, 46 Pa. Commonwealth Ct. 163, 405 A.2d 1364 (1979), employer provided salary continuation payments, which were made on account of a Claimant's disability, and, therefore, not in consideration of personal services performed, were held not to constitute wages under Section 4(x) of the Law. Workmen's compensation benefits are awarded whenever an employee sustains a totally or partially disabling work-related injury.*fn5 Since workmen's compensation payments were awarded to Claimants on account of their job-related disabilities, and not in consideration of personal services rendered, such payments are not wages within the purview of the Law. Id. The board, therefore, properly excluded workmen's compensation payments from the calculation of Claimants' base year qualifying wages.

We accordingly affirm the orders of the board.

Order in 309 C.D. 1983

And Now, this 5th day of December, 1984, the order of the Unemployment Compensation Board of Review at Decision No. B-213558, dated January 12, 1983, is affirmed.

Order in 1025 C.D. 1983

And Now, this 5th day of December, 1984, the order of the Unemployment Compensation Board of

[ 86 Pa. Commw. Page 297]

Review at Decision No. B-216306, dated March 28, 1983, is affirmed.

Order in 1212 C.D. 1983

And Now, this 5th day of December, 1984, the order of the Unemployment Compensation Board of Review at Decision No. B-217765, dated May 3, 1983, is affirmed.

Disposition

Orders affirmed.


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