Unemployment Compensation Board of Review v. Buss

Dissenting Opinion by

Judge Blatt :

I must respectfully dissent.

The claimant here was- given a choice by his employer either to use his accrued annual and sick leave or to be placed at once on indefinite leave without pay. He chose the latter. In either case, however, it was clear that he would not receive his regular salary nor would he perform any services during the claim weeks in question.

On these facts the majority has concluded that claimant was not “unemployed” during these claim weeks and is not, therefore, entitled to unemployment compensation. And, relying upon Gianfelice Unem*165ployment Compensation Case, 396 Pa. 545, 153 A.2d 906 (1959) and Sopko Unemployment Compensation Case, 168 Pa. Superior Ct. 625, 82 A.2d 598 (1951) the majority holds that vacation pay is “remuneration” and that a claimant entitled to receive vacation pay is, therefore, not “unemployed.” These are old cases, however, which seem to me to have no application to the case at hand.

I believe that statutory amendments to the Unemployment Compensation Law1 (Act) since those 1950’s cases now make it clear that availability for or receipt of vacation pay does not disqualify a claimant from collecting unemployment compensation as an unemployed individual.2

I fail to see how the majority can characterize sick leave as being “similar to vacation pay3,” but, in any case, the threshold issue remains the same: i.e., is the claimant here an unemployed individual. Prior to 1964, Section 4(u) of the Act, 43 P.S. §753 (u) provided the following definition of “unemployed.”

“ (u) ‘Unemployed.’ — -An individual shall be deemed unemployed (I) with respect to any week (i) during which he performs no services for which remuneration is paid or payable to him and (ii) with respect to which no remuneration is paid or payable to him, or (II) 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 plus his partial benefit credit. [Provided, That for the purposes of this subsection vacation pay and sim*166ilar payments, wages in lieu of notice, separation allowances, dismissal wages and similar payments whether or not legally required to he paid shall he deemed remuneration paid or payable with respect to such period as shall be determined by rules and regulations of the department. . . .]” (Brackets and emphasis added.)

At that time, therefore, vacation pay clearly was remuneration, and under those provisions, the claimant here would not be unemployed.4 In 1964, however, the General Assembly specifically deleted the proviso, bracketed above, which classified vacation pay as remuneration, and, at the same time, amended Section 404(d) of the Act, 43 P.S. §804(d), a provision describing how to compute benefits for eligible individuals, to allow for the benefit amount to be reduced by the amount of vacation pay . available to the claimant.5 In view of these amendments, it seems to me that the General Assembly then no longer considered vacation pay to be remuneration. The availability, or receipt *167of vacation pay, therefore, would not disqualify a claimant from becoming" an eligible individual under the provisions of Section 4(u) of the Act. As long as a claimant performs no service and receives no actual pay, he is unemployed and vacation pay figures only in the computation of the benefit amount to which he would be entitled. Even this last provision under Section 404(d) of the Act, however, has since been amended in 19686 and 19717 to eliminate consideration of vacation pay from the computation of the benefit amount payable where the unemployed individual is permanently or indefinitely separated from his employment. United States Steel Corporation v. Unemployment Compensation Board of Review, 9 Pa. Commonwealth Ct. 206, 303 A.2d 852 (1973). It would appear, therefore, that when this claimant was placed on an indefinite leave without pay, Section 404(d) read in pertinent part as follows.

“(d) Notwithstanding any other provisions of this section each eligible employe who is unemployed with respect to any week ending subsequent to the first day of October, one thousand nine hundred seventy-one, shall be paid, with respect to such week, compensation in an amount equal to his weekly benefit rate less the total of (i) the remuneration, if any, paid or payable to him with respect to such week for services performed which is in excess of his partial benefit credit; (ii) vacation pay, if any, except when paid to an employe who is permanently or indefinitely separated from his employment. . . .” (Emphasis added.)

In my view, therefore, because this claimant performed no service and received no remuneration for the claim weeks in question, he was “unemployed” within the meaning of Section 4(u) of the Act as it *168stood at the time in question here. Because he was placed on an indefinite leave from his employment, therefore, he is entitled to the full benefit amount without any deduction for the vacation pay which was available to him.

I would reverse the Unemployment Compensation Board of Review and remand this case for a proper determination of the benefit amount due.

Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §751 et seq.

Some of these changes have been discussed by our Supreme Court in Piestrak Unemployment Compensation Case, 404 Pa. 527, 172 A.2d 807 (1961).

See Lucciola v. Secretary of Education, 25 Pa. Commonwealth Ct. 419, 360 A.2d 310 (1976).

For a more complete discussion of vacation pay in unemployment compensation cases prior to 1964 see Ungarean Unemployment Compensation Case, 207 Pa. Superior Ct. 506, 218 A.2d 847 (1966) ; Doble Unemployment Compensation Case, 196 Pa. Superior Ct. 367, 175 A.2d 345 (1961) ; Franceschi Unemployment Compensation Case, 196 Pa. Superior Ct. 150, 173 A.2d 774 (1961).

Section 404(d) was amended to add the language emphasized below.

“(d) Notwithstanding any other provisions of this section each eligible employe who is unemployed with respect to any week ending subsequent to the first day of .Tuly, one thousand nine hundred sixty-four, shall be paid, with respect to such week, compensation in an amount equal to his weekly benefit rate less the total of (1) that part of the remuneration, if any, paid or payable to him with respect to such week for services performed which is in excess of his partial benefit credit, (2) vacation pay, if any, (3) severance or separation allowances or dismissal wages and similar payments, the payments of or eligibility for which is made or conditioned upon a temporary, indefinite or permanent sepcration from employment. . . .”

Act of January 17, 1968, P.L. 21.

Act of September 27, 1971, P.L. 460.