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filed: March 8, 1989.


Appeal from the Order of the Commonwealth Court of Pennsylvania dated May 1, 1987, at No. 1309 C.D. 1984, affirming the decision of the Unemployment Compensation Board of Review, Decision No. B-229107 dated April 6, 1984, affirming the decision of the Unemployment Compensation Referee, Appeal No. 83-6-A-646


John Stember, James P. O'Connell, Pittsburgh, PA, FOR APPELLANT

James Bradley, Assistant Counsel, Unemployment Compensation Board of Review, Clifford F. Blage, Deputy Chief Counsel, Harrisburg, PA, FOR APPELLEE

Justice Stout

Author: Stout



This is an appeal from the affirmance by the Commonwealth Court of the denial of benefits under the Unemployment Compensation Act [Act], Pa. Stat. Ann. tit. 43, §§ 751-882 (Purdon 1964 & Purdon Supp. Pamph. 1988). The benefits were denied on the theory that Appellant lacked the qualifications required to secure compensation under section 801(a) of the Act which provided, among other things, that the claimant meet the financial eligibility requirements of section 804(c) of the Act.*fn1

Appellant, Mary J. Poola, had been an employee of the Beaver County Job Training Partnership Agency for over seven years. In October 1982, Appellant was laid off. On October 22, 1982, her employer paid her a lump sum of $2,026.00. She subsequently received unemployment compensation benefits for one year and, on October 2, 1983, she filed a claim for benefits for a second year establishing July 1, 1982, to June 30, 1983, as the base year period. Appellant's base year, therefore, consisted of the last two quarters of 1982 and the first two quarters of 1983 with earnings for the entire fourth quarter of 1982 having been paid in a lump sum. At the hearing before the Referee, the employer explained the lump sum as follows:

Q. Could you explain this breakdown that we have marked as Exhibit Number Six?

A. Yes, what we did was give them two weeks a sort of like severance pay after the date of their termination. Like she terminated on the 4th and then we gave them the next two weeks as severance pay. And they were paid for any vacation that they had already accumulated and she had three weeks. And then we paid them for accrued vacation from the point and time of their anniversary until their termination date, their lay-off date which came out to 43 and three-quarters hours which is a little over a week.

Q. Are you saying that she had three weeks of accumulated vacation?

A. Yes, she had already worked for that.

Q. And she had one week accrued vacation.

A. Right and then she got sick time and her comp time. And all that was paid, I have a pay date of October 22nd.

Q. Alright [sic] anything else that you can add to this?

A. No, that's [sic].

Q. That was all paid in one check, a lump sum payment.

A. Right[.]

Q. So the two weeks continuation that was severance pay. That's on the employer's. That's how the employer classified it.

A. I don't think they ever classified it as severance, you know, as such but they were given two weeks pay.

Q. But they didn't work those two weeks.

A. No[.]

N.T. 12-5-83 at 4-5.

Appellant testified that she always took one week of vacation in May and one week at Thanksgiving, id. at 3, and that her employer permitted the scheduling of vacations with twenty-four hours advance notification. Id.

The sole issue before the Referee was whether Appellant's unscheduled vacation weeks could be computed as credit weeks for purposes of determining benefit eligibility. The Referee allowed thirteen credit weeks for the thirteen weeks of work in the third quarter of 1982 but computed only one credit week in the fourth quarter of 1982 after making a finding of fact that: "Claimant did not have any particular weeks of vacation scheduled at the time of her separation from work."*fn2 Referee's Decision at 1. According to the Referee's calculations, Appellant had only fourteen weeks in her base year instead of the requisite eighteen weeks. Appellant, however, contests this computation and claims that she should have been credited four weeks for the final quarter of 1982. We agree and, therefore, we reverse the decision of the Commonwealth Court.

In support of his allowance of only one credit week for the accrued, but unscheduled, four-week vacation, the Referee reasoned:

Under the . . . definition of "credit week" claimant has 14 such weeks in her base year. This is insufficient to qualify her for benefits under the provisions of section [804(c)] of the Law. Claimant here argues that the lump sum payment she received should be counted for credit weeks. The Referee recognizes claimant's argument that if her lump sum payment was allocted over a four-week period it would then allow her to have credit for 18 weeks of wages. In the opinion of the Referee the claimant's request that the lump sum vacation pay allocated to the fourth quarter of 1982 will entitle claimant only [to] one credit week of wages. Under these circumstances claimant cannot be determined financially eligible under the provisions of Section [804(c)] of the Law.

Id. There is no statutory basis for this method of computation. Unemployment Compensation Bulletin No. 871, Supp. No. 8B, dated April 26, 1983, contains the following statement which is designated "Policy:"

If no pre-arranged vacation pay period was scheduled by either the claimant or employer and approved by the employer prior to the last day of work, the claimant's vacation pay shall be considered to represent payment for accrued vacation leave. In this case, one credit week would be assignable to the week in which the vacation payment was made to the claimant. If the employer chooses to make this payment in several installments in accordance with his/her customary pay period, only one credit week is assignable to the first pay period in which the vacation payment was made.

Lopata v. Unemployment Compensation Board of Review, 507 Pa. 570, 493 A.2d 657 (1985), however, taught that this Bulletin provision must be considered a regulation rather than merely a statement of policy. As such it does not comply with the Commonwealth Document Law [Document Law], Pa. Stat. Ann. tit. 45, §§ 1101-1602 (Purdon Supp. Pamph. 1988),*fn3 and it may not form the basis for Referee or Board decisions. It cannot, therefore, dictate the denial of benefits.

As we did in Lopata, we next consider whether the decision here may be upheld as a valid exercise of the Board's adjudicative function. This requires a determination of whether the Board's adjudication effectuates the legislative intent underlying the definition and application of "credit weeks" as a condition of eligibility. We are guided by the wisdom of Mr. Justice McDermott who, in Lopata, wrote:

We have previously articulated the legislative intent underlying financial eligibility requirements as being a means to demonstrate a claimant's genuine attachment to the work force. See generally Martin v. Unemployment Compensation Board of Review, 502 Pa. 282, 466 A.2d 107 (1983). We have also consistently recognized the remedial nature of the Unemployment Compensation Law, and have striven to give its provisions broad and liberal construction. Renne v. Unemployment Compensation Board of Review, (Renne), 499 Pa. 299, 453 A.2d 318 (1982); Gladieux Food Services, Inc. v. Unemployment Compensation Board of Review, 479 Pa. 324, 388 A.2d 678 (1978). Moreover, this Court has held that, absent a specific disqualification in the Law, a presumption of eligibility attaches to involuntarily unemployed claimants. Penn Hills School District v. Unemployment Compensation Board of Review, (Penn Hills), 496 Pa. 620, 437 A.2d 1213 (1981); Sturdevant v. Unemployment Compensation Board of Review, 158 Pa. Super. 548, 45 A.2d 898 (1946).

507 Pa. at 576-577, 493 A.2d at 661.

Neither the Referee's determination, nor the affirmance thereof by the Board and the Commonwealth Court, effectuated the legislative intent underlying the definition and application of "credit week" as a condition of eligibility.*fn4 Such a construction of the Act is neither broad nor liberal. See Lopata at 579, 493 A.2d at 662. Since the Act is remedial, so narrow a construction cannot stand. Moreover, there are only two statutory limitations in the definition of a "credit week." It must be a calendar week in which a claimant is paid in employment not less than fifty dollars and only one credit week can be established with respect to any one calendar week. There is nothing in the Act which directs that the allocation of credit weeks for vacation time depends on whether the vacation was scheduled or unscheduled.

We hold, therefore, that for every week of vacation time, scheduled or unscheduled, earned during a base year, a "credit week" must be allocated. A contrary holding would not comport with reason, with the letter of the law, or with its underlying policy. See Pane v. Unemployment Compensation Board of Review, 95 Pa. Commw. 40, 504 A.2d 958 (1986) (Applicability of an offset provision cannot properly be predicated upon when an employee schedules his or her vacations. Such result has the effect of needlessly penalizing certain employees and is impermissibly arbitrary.)


The Order of the Commonwealth Court is reversed and the case is remanded for the computation of benefits.

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