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MARGARET LASOTA ET AL. v. COMMONWEALTH PENNSYLVANIA (09/22/88)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: September 22, 1988.

MARGARET LASOTA ET AL., PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT

Appeal from the Orders of the Unemployment Compensation Board of Review, in the cases of In Re: Claims of Margaret A. LaSota, No. B-260896; Rose F. Morreale, No. B-260897; Eleanor Roman, No. B-260898; Josephine M. Triani, No. B-260899; Amelia Grigalonis, No. B-260900; Agnes P. Gambino, No. B-260901; Jane Drost, No. B-260902; Mary C. Knitowski, No. B-260903; Ramona C. Keiderling, No. B-260904; Josephine Modlesky, No. B-260905; Carmello Suriano, No. B-260906; Dorothy Alfano, No. B-260907; Rosalie Alu, No. B-260908; Natalie Pliscott, No. B-260909; Carol Benfante, No. B-260910; Lucille C. Battle, No. B-260911; Mary M. McNutty, No. B-260912; Rose G. Cellucci, No. B-260913; Mary G. Lattore, No. B-260914; Marie Modeski, No. B-260915; Leona Caputo, No. B-260916; Rose DePrimo, No. B-260917, Alfreda J. Suchocki et al., No. B-260918 and Clara Kosik, No. B-260920, dated September 2, 1987.

COUNSEL

James A. Diamond, Handler, Gerber, Johnston & Aronson, for petitioners.

James K. Bradley, Assistant Counsel, with him, Clifford F. Blaze, Deputy Chief Counsel, for respondent.

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

Author: Crumlish

[ 119 Pa. Commw. Page 628]

Margaret LaSota and twenty-nine other claimants (claimants) appeal Unemployment Compensation Board

[ 119 Pa. Commw. Page 629]

    of Review orders affirming referee decisions denying claimants benefits because their earnings during an otherwise compensable vacation shutdown exceeded the maximum amount permitted for eligibility. Section 404(d) of the Unemployment Compensation Law.*fn1 We reverse and remand.

The claimants, garment manufacturer employees, received "vacation pay" and holiday bonuses prior to their employer's scheduled two-week December shutdown. The Board determined that each employee's payment should be allocated as earnings to individual shutdown days, in an amount equal to the employee's regular daily wage rate, until the total payment was exhausted.*fn2 The claimants concede that this allocation process resulted in excess earnings, and thus ineligibility, with respect to the first week of the shutdown. However, they contend that the Board miscalculated in finding*fn3 that they also had excess earnings during the second week.

Based on our review of the Board's findings, we agree with the claimants. The Board expressly found that the vacation pay received in December was allocable

[ 119 Pa. Commw. Page 630]

    to that period. Finding of Fact No. 5, Board's Decision No. B-260896. A pro tanto allocation to each shutdown day gradually depletes the total sum paid so that the amount to be allocated in the second week would not exceed the maximum earnings permitted for eligibility for that week.*fn4

The Board alternatively contends that its conclusion is supportable for reasons not relied on in its decision, and therefore this Court can sustain the result. Of course, where the Board assigns an erroneous legal reason to a correct decision, this Court can sustain the result where the record clearly reflects the correct basis for the decision. Waltz v. Unemployment Compensation Board of Review, 111 Pa. Commonwealth Ct. 54, 533 A.2d 199 (1987).

The Board points to evidence showing that the claimants received a total of six percent of their annual salary as vacation pay for the calendar year. They received four percent during an earlier July shutdown and two percent during the December shutdown. The Board argues that one percent received in July should be treated as though it were received in the December shutdown so as to equally apportion the yearly vacation pay between the two periods. This additional one percent allocated to December would result in claimants having received excess earnings during the second week.

Section 404(d) of the Law provides that vacation pay "shall be allocated to such period or periods of unemployment as shall be determined by rules and regulations of the department." The applicable regulation provides, in pertinent part:

[ 119 Pa. Commw. Page 631]

The Department shall determine the number of days or weeks of the vacation period to which the vacation pay shall be applied by dividing the total amount of vacation pay by the regular full-time daily or weekly wage of the claimant.

34 Pa. Code ยง 65.96 (emphasis added).

The Board maintains that the phrase "vacation period" means a single period consisting of all separate shutdowns in a year. However, such an interpretation would require us to disregard the Board's Finding of Fact No. 5, cited above, which indicates that the vacation pay received in December was allocable to the December shutdown. Thus, the Board proposes alternative factual findings. We may not reverse factual findings where they are supported by substantial evidence. Glenn v. Unemployment Compensation Board of Review, 71 Pa. Commonwealth Ct. 550, 455 A.2d 293 (1983). Here, the evidence showing that the payment was received at the December shutdown supports the finding.

Accordingly, we reverse the Board and remand for a recomputation of claimants' earnings consistent with this Opinion.

Order

The orders of the Unemployment Compensation Board of Review, Nos. B-260896, B-260897, B-260898, B-260899, B-260900, B-260901, B-260902, B-260903, B-260904, B-260905, B-260906, B-260907, B-260908, B-260909, B-260910, B-260911, B-260912, B-260913, B-260914, B-260915, B-260916, B-260917, B-260918, B-260920, all dated September 2, 1987, are reversed. The matters are remanded for computation of benefits consistent with this Opinion.

Disposition

Reversed and remanded.


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