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JOHN RILEY v. COMMONWEALTH PENNSYLVANIA (09/11/86)

decided: September 11, 1986.

JOHN RILEY, 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 John Riley, No. B-231263.

COUNSEL

Martin J. Vigderman, Freedman and Lorry, P.C., for petitioner.

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

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

Author: Barry

[ 100 Pa. Commw. Page 477]

This is an appeal by John Riley (claimant) of an order by the Unemployment Compensation Board of Review (Board) affirming a referee's decision declaring him ineligible for benefits under Section 4(w)(2) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 753(w)(2).

Claimant was employed as a waterfront worker for approximately thirty-five years. His last day of work was July 9, 1982. He collected unemployment benefits from July 11, 1982, through July 9, 1983. He filed a new application for benefits effective July 10, 1983, but it was rejected on grounds of insufficient earnings. He filed another application effective January 15, 1984, but, again, benefits were denied because of insufficient earnings. Claimant appealed this second denial of benefits. The referee declared him ineligible under Section 4(w)(2) of the law and the Board affirmed the referee.

On appeal to this Court, claimant admits that he has not been gainfully employed since July 9, 1982. However, he maintains that the supplemental unemployment compensation benefits which he received from the Philadelphia Marine Trade Association/International Longshoremen's Association Benefit Fund should be considered as wages under Section 4(w)(2). His argument is

[ 100 Pa. Commw. Page 478]

    essentially based on Section 4(x)(6) of the Law which provides as follows:

(6) Notwithstanding any other provisions of this subsection, wages shall include all remuneration for services with respect to which a tax is required to be paid under any Federal law imposing a tax against which credit may be taken for contributions to be paid into a state unemployment fund or which as a condition for full tax credit against the tax imposed by the Federal Unemployment Tax Act are required to be included under this act. 43 P.S. § 753(x)(6).

Since the benefits received by claimant are subject to all tax withholdings, including unemployment compensation tax, claimant maintains that he is entitled to receive unemployment compensation. We do not agree.

This Court has recently held that supplemental unemployment payments are not wages in Hargenrader v. Unemployment Compensation Board of Review, 99 Pa. Commonwealth Ct. 626, 513 A.2d 1135 (1986). However, claimant's application was rejected because it did not meet the ...


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