Unemployment Compensation Board of Review v. Buss

Opinion by Judge Crumlish, Jr., This is an appeal by Charles Buss (Claimant) from a decision and order of the Unemployment Compensation Board of Review (Board) which denied unemployment compensation by affirming the order of the referee. Claimant was last employed by the United States Postal Service as a nixie clerk. When the central mark-up system where he worked was transferred to another city, he did not move with the system and entered into leave status. Prior to his going on non-paid leave, Claimant had been given the choice of taking either annual or sick leave status, both of which he refused. Claimant has maintained that despite his physical limitation caused by rheumatoid arthritis, he is nevertheless able to work. The Board sustained the referee’s reversal of the Bureau of Employment Security’s determination that Claimant was eligible for benefits. Upon Claimant’s request for reconsideration, the Board ordered a remand hearing. After a review of the testimony taken during the remand hearing, the Board reaffirmed its decision. The sole question presented is whether the Board erred in affirming the determination made by the referee, who found that Claimant is not unemployed and hence is not entitled to unemployment compensation under the appropriate sections of the Unemployment Compensation Law1 (Law). The fundamental social purpose of the Unemployment Compensation Law is to provide relief from the rigors of unemployment, that is, to alleviate economic distress in individual cases. Unemployment Compen [163] sation Board of Review v. Department of Labor and Industry, 203 Pa. Superior Ct. 336, 201 A.2d 310 (1964); Neff v. Unemployment Compensation Board of Review, 195 Pa. Superior Ct. 4, 169 A.2d 338 (1961). A further tenant of the Law is to help solve involuntary unemployment and its resulting burden of indigency, and the fund is to be used for the benefit of persons unemployed through no fault of their own. Charney v. Unemployment Compensation Board of Review, 194 Pa. Superior Ct. 402, 168 A.2d 604 (1961). In the case at bar, Claimant was on non-paid leave status, a status he chose. His employment with the Post Office was not terminated. While pension payments do not constitute wages within the Law, the receipt of a pension will not disqualify an employe from receiving unemployment compensation if he meets the other requirements of the Law. Keystone Mining Co. v. Unemployment Compensation Board of Review, 167 Pa. Superior Ct. 256, 75 A.2d 3 (1950). Claimant, if he chose paid leave status, would not be receiving pension payments. If we are to categorize these payments, they are similar to vacation pay. In Sopko v. Unemployment Compensation Board of Review, 168 Pa. Superior Ct. 625, 82 A.2d 598 (1951), a claimant was disqualified from receiving benefits for weeks in which he received vacation pay. In Gianfelice Unemployment Compensation Case, 396 Pa. 545, 555, 153 A.2d 906, 911 (1954), our Supreme Court set the standard for us to determine whether a claimant is entitled to benefits if, at the same time, he is eligible to receive other remuneration. The late Justice Cohen, speaking for the Supreme Court, wrote: “Under sec. 4(u) of the act, 43 P.S. §753 (u), an individual is deemed unemployed if he performs no remunerated services during the claim week and if he is paid or owed no remuneration with respect to [164] Such week. Here, G-ianfelice certainly has performed no services for which he was compensated; so he has qualified under the first condition. As to the second— that he he paid or owed no remuneration with respect to the claim week — the act is devoid of a definition of ‘remuneration’. .. ‘Remuneration’ is generally defined as a payment for services performed. . . .” This standard is applicable to this case. As in Qianfelice, Claimant has performed no services for which he was compensated during the claim weeks, thereby satisfying the first condition, but he falls under the demands of the second condition. Claimant was entitled to annual and/or sick leave pay for services performed. This leave pay, which he chose not to accept, accrued to him as a result of services performed. Since he is owed remuneration for the claim weeks, the Board did not err when it denied Claimant unemployment compensation benefits. We therefore Order And Now, this 20th day of August, 1976, the decision and order of the Unemployment Compensation Board of Review is hereby affirmed. Footnotes [1] Section 401 as defined by Section 4(u) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §753(u), 801.