Kahn v. Commonwealth

DOYLE, Judge. This is an appeal by Jacob S. Kahn (Claimant) from an order of the Unemployment Compensation Board of Review (Board) which denied Claimant benefits on the basis of Section 404 of the Unemployment Compensation Law (Law).1 Section 404 restricts the grant of benefits to individuals who have, inter alia, earned sufficient base year wages. This case was originally heard before a referee who made findings of fact and concluded that Claimant had insufficient total base year wages and, accordingly, was ineligible to receive benefits. Claimant appealed the decision to the Board contending that certain portions of his income had not been considered by the referee. The Board accordingly granted a rehearing in the matter and directed that a hearing examiner take evidence on behalf of the Board. At the rehearing neither Claimant nor the employer appeared. Accordingly, the Board then issued its findings of fact based upon the evidence presented at the original hearing. The Board specifically determined that Claimant had established a base year consisting of all four quarters of 1987 and found the breakdown of his wages to be as follows: 3. The claimant, during his base year, earned the following wages: First Quarter, 1987 - Delaware Valley $ 220.00 - New Jersey $ 700.00 Second Quarter, 1987 - Delaware Valley $ 25.00 - New Jersey $4,188.00 Third Quarter, 1987 - New Jersey $ 245.00 Fourth Quarter, 1987 - Parkside C $ 554.00 - Delaware Valley $ 280.00 - New York $ 127.00 4. The claimant earned an additional $252.00 from New York that is not reflected in the above table. The claimant earned $168.00 in the first quarter of 1987 and $84.00 in the second quarter of 1987. [331] 5. The claimant had a high quarter of $4,297.00 and total base year wages of $6,591.00. Board findings of fact 3-5. The Board then observed that under Section 404(e) of the Law a claimant whose highest quarterly base year wages amount to $4,297.00 can qualify for benefits provided his total base year wages amount to at least $6,880.00. The Board observed that Claimant’s total base year wages amounted to only $6,591.00 and, thus, concluded that he was ineligible to receive benefits. The Board further observed that Claimant was ineligible to receive benefits under the step-down provisions appearing in Section 404(a)(3) of the Law. Claimant appealed the Board’s decision to this Court. On appeal here Claimant does not dispute the amounts of money which appear in the Board’s findings of facts 3 through 5. But, he contends that there should have been included in his base year earnings an additional sum of $774.72 which amount stems from a judgment Claimant obtained against a former employer (Ad/Vent) for commissions earned but never paid. A copy of the judgment was submitted to the referee at the hearing. At the hearing Claimant testified that he had received the judgment and also clearly testified that the judgment had not yet been paid to him. It is undisputed that Claimant’s eligibility for benefits depends upon whether the sum of $774.72 is included in his base year wages. The thrust of Claimant’s argument is that while he had not received the sum at the time of the hearing, it is properly allocated toward the quarter in which the money would have been earned. Claimant relies upon Cugini v. Unemployment Compensation Board of Review, 511 Pa. 264, 512 A.2d 1169 (1986) (plurality opinion). In Cugini the Supreme Court held that wages should be treated, for purposes of Section 404, as paid when they were actually earned by a claimant. Claimant thus asserts that because the money in question was earned during the base year he [332] is entitled to receive unemployment compensation benefits. Unfortunately, we must disagree. The one important fact which distinguishes Claimant’s case from Cugini is that in Cugini the employees actually received the money due them. The question was simply to which quarter it should be allocated. Similarly, in USX Corp. v. Unemployment Compensation Board of Review, 122 Pa.Commonwealth Ct. 20, 551 A.2d 389 (1988), claimants were entitled to have backpay awarded to them by an arbitration award credited to the period in which they should have been paid the money initially. But, as in Cugini, the claimants had actually received the backpay and the question was to which quarter it should be allocated. We note that Section 4(x) of the Law, 43 P.S. § 753(x), defines “wages” as “all remuneration ... paid by an employer to an individual ...” (emphasis added). Since the wages at issue here were admittedly not paid to Claimant, they cannot be included in Claimant’s base year wages. This case is thus distinguishable from Cugini and USX and compels a contrary result. Having determined that there is no evidence of record that Claimant ever received the $774.72 judgment, the Board’s order ruling that Claimant was ineligible for benefits under Section 404 of the Law must be affirmed. ORDER NOW, July 20, 1989, the order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby affirmed. Footnotes [1] Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 804.