Hock v. Com., Unemployment Compensation Bd. of Review
| Decision Date | 16 April 1980 |
| Citation | 413 A.2d 444,50 Pa.Cmwlth. 517 |
| Parties | Vincent M. HOCK, Petitioner, v. COMMONWEALTH of Pennsylvania, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW and Lehigh Portland Cement Company, Respondents. |
| Court | Pennsylvania Commonwealth Court |
Vincent M. Hock, pro se.
Richard Wagner, Gen. Counsel, Unemployment Compensation Bd. of review, Harrisburg, Edward W. Hyland, Allentown, for employer.
Before MENCER, BLATT and MacPHAIL, JJ.
The sole issue raised by this appeal is whether the receipt of termination benefits disqualifies a claimant from receiving unemployment compensation benefits pursuant to sections 4(u) and 404 of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. §§ 753(u) and 804. We are constrained to hold that such receipt does not disqualify a claimant from receiving unemployment compensation benefits.
The facts of this case are not in dispute. Vincent M. Hock (Claimant) was employed as a corporate attorney by Lehigh Portland Cement Company (Employer) from April 1, 1968 until September 28, 1978, his last day of work. Employer terminated Claimant's position on that date because of a desire to reduce the size of its staff. At the time of the termination, Claimant was receiving a salary of $2,850.00 per month. Upon his termination, Claimant received a lump sum payment of $1,183.86 representing vacation pay. He was maintained on Employer's payroll until December 15, 1978. During that time, he received payments amounting to 11 weeks of his prior salary and various fringe benefits. The salary payments were based on his service with Employer one week's salary for each year of employment.
Following the termination, Claimant applied for unemployment compensation benefits. His application was refused by the Bureau (now Office) of Employment Security (Bureau) on the basis that he was not "unemployed" as that term is defined in Section 4(u) of the Law. Claimant appealed the Bureau's decision and following a brief hearing at which Claimant and Employer's representative testified, the referee affirmed the Bureau's determination. Claimant appealed the referee's decision to the Unemployment Compensation Board of Review (Board) which remanded the matter to the referee for the purpose of taking further testimony on certain issues. Neither Claimant nor Employer offered further testimony at the remand hearing, but Claimant did submit a letter addressing the issues raised by the Board. The Board then affirmed the referee's earlier decision and Claimant appealed that order to this Court.
In 1949, our Superior Court held in Fazio Unemployment Compensation Case, 164 Pa.Super. 9, 63 A.2d 489 (1949), that the receipt of "voluntary dismissal pay" rendered a claimant ineligible to receive unemployment compensation benefits. That Court reached a similar decision in 1961 in Parker Unemployment Compensation Case, 196 Pa.Super. 344, 174 A.2d 664 (1961). Due to subsequent amendments in the law governing Pennsylvania's unemployment compensation program, however, we must hold that Fazio and Parker no longer control.
In 1949, when Fazio was decided, Section 4(u) of the Law read:
" 'Unemployment' An individual shall be deemed unemployed with respect to any week during which he performs no services and with respect to which no remuneration is paid or payable to him, or with respect to any week of less than his full-time work if the remuneration paid or payable to him with respect to such week is less than his weekly benefit rate: Provided, That for the purposes of this subsection, (i) vacation pay and similar payments, whether or not legally required to be paid, and (ii) wages in lieu of notice, separation allowances, dismissal wages and similar payments, which are legally required to be paid, shall be deemed, in accordance with rules and regulations of the department, remuneration paid or payable with respect to the week or weeks for which such payments are made." (Emphasis added.)
Between the dates of the Fazio and Parker decisions, Section 4(u) was amended several times. Each time, however, the Section retained the proviso that separation allowances, dismissal wages, and similar payments were to be considered remuneration paid or payable with respect to the week or weeks for which such payments were made. Section 4(u) was amended again by Section 1 of the Act of March 24, 1964, Spec.Sess., P.L. 53 and that time the proviso was eliminated from the section. Today, Section 4(u) reads:
For the reasons which follow, we hold that Section 4(u) does not preclude a claimant who receives dismissal wages from receiving unemployment compensation benefits as well.
First, we note that "A change of language in subsequent statutes on the same matter indicates a change of legislative intent." Haughey v. Dillon, 379 Pa. 1, 6, 108 A.2d 69, 72 (1954). Masland v. Bachman, 473 Pa. 280, 289, 374 A.2d 517, 521 (1977); Nemitz v. Air Services International, 7 Pa.Cmwlth. 373, 379, 298 A.2d 654, 657 (1972). The legislature's deletion in 1964 of the proviso in Section 4(u) relating to severance or dismissal wages is strong indication of its intention to change the meaning of that section. Our Supreme Court recently reached a similar conclusion in Buss v. Unemployment Compensation Board of Review, --- Pa. ---, 410 A.2d 779 (1980).
In Buss, the issue was whether a claimant on indefinite leave from work and eligible to receive accumulated vacation pay was ineligible for unemployment compensation benefits. The Court held there that the amendment to Section 4(u) coupled with an amendment to Section 404(d) evidenced a legislative intent to treat vacation pay not as a factor which would disqualify a claimant from receiving benefits but rather as a factor which would be used in computing benefits due. Our conclusion is the same. 1
Second, a plain reading of Section 4(u) and the application of the Law to the facts of this case reinforce our holding. An individual shall be deemed unemployed with respect to any week during which he or she (1) performs no services for which remuneration is paid or payable and (2) with respect to which no remuneration is paid or payable. Claimant was dismissed from his employment on September 28, 1978. He performed no services for Employer after that date and there can be no question that he met the first requirement of unemployment. The more difficult question is whether the payments he received between September 28, 1978 and December 15, 1978 disqualify him pursuant to the second requirement.
The key to determining the issue is an understanding of the phrase "with respect to which." Merely because the payments were made during the weeks at issue does not mean that they were made with respect to those weeks. The Unemployment Compensation Law does not define the term "remuneration." The standard judicial definition of the term, however, is "payment for services performed." Gianfelice Unemployment Compensation Case, 396 Pa. 545, 555, 153 A.2d 906, 911 (1959). The question, then, is when were the services performed for which Claimant received payment. Clearly, they were performed between April 1, 1968 and September 28, 1978. It was Employer's policy to pay to any employee it terminated for reasons such as those evident here one week's salary for each year of service. Employer's representative indicated in his testimony that the reason for such payments was to help the employee through the transition period of finding new employment. That motive is not conclusive, however, on the "with respect to which" issue. Claimant received the equivalent of eleven weeks salary in recognition of his eleven years of service to Employer. There is no indication on the record that had he located new employment the day following his dismissal that his termination benefits would have ceased. Nor is there any indication that had he remained unemployed beyond eleven weeks the payments would have continued beyond December 15. We also think that it is irrelevant that Claimant received these payments periodically rather than as a lump sum. In either event, they represented payments in recognition of past not present service and in neither event would they disqualify him from receiving unemployment compensation benefits.
The Board argues that this Court's opinion in Hyduchak v. Unemployment Compensation Board of Review, 35 Pa.Cmwlth. 575, 387 A.2d 669 (1978) is controlling on the issue before us now and mandates that we hold that Claimant is ineligible for unemployment compensation benefits. The difference between Hyduchak and this case is the difference between regular wages and termination benefits. In Hyduchak, claimants, who were school teachers, had the option of receiving a lump sum payment equaling the biweekly pay which they would normally receive over the summer months or of continuing to receive their biweekly checks throughout the summer. The claimants chose the latter and also applied for unemployment compensation benefits. We held that the wages received by the teachers constituted remuneration paid or payable with respect to the summer months and, therefore, that the teachers were ineligible to receive unemployment compensation benefits. Conceivably, a similar situation could have arisen here if Employer (1) had told Claimant that he would be discharged on September 28, 1978, (2) at Claimant's request, had withheld one week's salary out of every month he...
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