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Dep't of Labor and Industry v. Unemployment Compensation Board of Review

August 11, 2010

DEPARTMENT OF LABOR AND INDUSTRY, OFFICE OF UNEMPLOYMENT COMPENSATION BENEFITS, PETITIONER
v.
UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



The opinion of the court was delivered by: Senior Judge Flaherty

Submitted: July 9, 2010

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE JIM FLAHERTY, Senior Judge.

OPINION

The Department of Labor and Industry, Office of Unemployment Compensation Benefits (Department) appeals from a decision of the Unemployment Compensation Board of Review (Board). The Board's decision affirmed a referee's determination that Joseph V. Creighton (Claimant) was entitled to Emergency Unemployment Compensation (EUC) benefits. In order to have qualified for EUC benefits in Pennsylvania, the claimant must have had base year wages at least equal to one and one-half times his highest quarterly wage. McKenna v. Unemployment Compensation Board of Review, 981 A.2d 415 (Pa. Cmwlth. 2009).

Claimant filed for EUC benefits after exhausting his regular unemployment compensation benefits. The Department denied his request.*fn1

Upon review, Referee Sheila Mellon found Claimant eligible for EUC benefits in a decision dated July 27, 2009. This determination was appealed. The Board remanded the matter for the parties to submit additional evidence. The Board indicated "a Departmental representative... shall provide... a copy of the financial determination at issue, and explain the Department's rationale for denying EUC benefits." Reproduced Record (R.R.), at 57a. A hearing was held on remand whereupon additional testimony was presented. Thereafter, the Board found as follows:

- For the 2nd quarter of 2007, Claimant had wages of $59,876.00 with T-Mobile. This calculation included payment of a severance package totaling $57,404.00.

- For the 3rd quarter of 2007, Claimant received no wages.

- For the 4th quarter of 2007, Claimant earned $3,847.00 from Aircom International Inc. (Aircom).

- For the 1st quarter of 2008, Claimant had wages of $26,775.00 from Aircom.

The Board concluded Claimant had base year wages of $90,498.00. It further determined that 1.5 times Claimant's highest quarterly wage was $89,814.00.*fn2 It found Claimant eligible for EUC benefits as his total base year wages exceeded 1.5 times his highest quarterly wage. This appeal followed.*fn3

The Department argues on appeal that the Board's determination is not supported by substantial, competent evidence. The Department asserts that although the Board correctly found Claimant's severance package should be included as wages in the 2nd quarter of 2007, the Board nonetheless found an incorrect amount in calculating Claimant's earnings for that quarter.*fn4 It contends that Claimant testified on two separate occasions that he earned $71,110.00 in the 2nd quarter of 2007. According to the Department, had the Board utilized this figure, Claimant's base year wages would have been $101,732.00. The Department posits that this monetary figure would not exceed 1.5 times $71,110.00, or $106,665.00.*fn5

Therefore, per the Department, Claimant should have been found ineligible for EUC benefits.

The record indicates Claimant testified that he believed his wages for the 2nd quarter of 2007 were $13,705.00. He agreed he received a severance package of approximately $57,000.00 during that quarter. He did not think the severance package should be used in calculating his entitlement to EUC benefits. He proffered that in the aggregate, he received either $71,000.00 or $77,000.00 in the 2nd quarter of 2007 from T-Mobile. The range is due to the fact he believed he worked two weeks into May while the pay stubs of record end in April. ...


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