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RICHARD W. BURGIT v. COMMONWEALTH PENNSYLVANIA (06/04/86)

decided: June 4, 1986.

RICHARD W. BURGIT, 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 Richard W. Burgit, No. B-236529.

COUNSEL

Edward M. Pulaski, for petitioner.

Samuel Lewis, with him, James K. Bradley, Associate Counsel, and Charles G. Hasson, Acting Deputy Chief Counsel, for respondent.

Judges Barry and Palladino, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Barry. Judge Palladino dissents.

Author: Barry

[ 97 Pa. Commw. Page 616]

Richard W. Burgit, the claimant, appeals from an order of the Unemployment Compensation Board of Review (Board), affirming a decision of the referee which denied the claimant benefits for failure to qualify under the "20%" rule contained in Section 401(a) of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 801(a)(Supp. 1985).

The present application for benefits was filed with an effective date of September 30, 1984. Section 4(a) of the Law, 43 P.S. § 753(a), defines a claimant's base year as "the first four of the last five completed calendar quarters immediately preceding the first day of the individual's benefit year." As the claimant's benefit year on this application would run forward from September 30, 1984, his base year would normally encompass the second, third and fourth quarters of 1983 and the first

[ 97 Pa. Commw. Page 617]

    quarter of 1984. Claimant, however, had filed a previous application for benefits with an effective date of October 2, 1983. Claimant's base year for that application for benefits encompassed the last two quarters of 1982 plus the first two quarters of 1983.

While the claimant was collecting benefits under his initial application for benefits, he inquired at the Office of Employment Security (OES) as to what would be necessary to qualify for benefits once his initial benefit year expired. He was told that all that was necessary was that he earn six times his weekly benefit rate under the initial application. The referee specifically found that the OES gave this misleading information to the claimant.

Upon the claimant's present application for benefits, the OES then determined that he was ineligible for the following reasons. In Lewis v. Unemployment Compensation Board of Review, 71 Pa. Commonwealth Ct. 412, 454 A.2d 1191 (1978), we held that the Legislature, in enacting the Law, did not intend that an applicant could use the same quarter twice in two successive applications for benefits. As the second quarter of 1983 had been used in the claimant's first base year, the OES refused to use it in the base year on this application. Therefore, on the present application for benefits, claimant's wages which could be considered were (1) $9,526.00 -- third quarter of 1983, (2) $638.00 -- fourth quarter of 1983 and (4) no earnings for the first quarter of 1984. To be eligible for benefits, Section 401(a) of the Law requires, among other things, that "not less than twenty per centum (20%) of the employe's total base year wages have been paid in one or more quarters, other than the highest quarter in such employe's base year." 43 P.S. § 801(a)(Supp. 1985). To satisfy this requirement, the claimant would have had to have earned $1,381.50 outside of the third quarter of 1983. Having

[ 97 Pa. Commw. Page 618]

    failed to do so, the OES determined that the claimant was not ...


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