73 Pa. Commw. 258 | Pa. Commw. Ct. | 1983
Opinion by
The Pennsylvania Electric Company (employer) appeals an order of the Unemployment Compensation Board of Review (Board) granting benefits to Sherry B. Carlin (claimant).
For purposes of this appeal, the claimant was last employed as a meter reader by the Pennsylvania Electric Company. On November 18, 1980, when she was approximately five months pregnant, she presented a doctor’s note to her employer which stated that because of the inclement weather during the winter months, she was advised against continuing her job as a meter reader until she had her baby. After requesting other work from her employer, which he could not provide, the claimant was placed on sick leave. Subsequently, she applied for unemployment benefits which were granted by the referee and affirmed by the Board. The employer now appeals to this Court.
The employer first contends that the claimant should be denied benefits in that she failed to establish compelling and necessitous reasons for leaving
• The employer next asserts that the claimant should be denied benefits since she failed to establish her availability for work, in that she made no effort to obtain other suitable employment and fully intended to resume her job as a meter reader at the close of her sick leave. In unemployment cases, the burden of proving availability for suitable work is on the claimant. Koba v. Unemployment Compensation Board of Review, 29 Pa. Commonwealth Ct. 264, 370 A.2d 815 (1977). In meeting this burden, the claim
Lastly the employer argues that the claimant cannot be unemployed since it continued to pay insurance premiums on her behalf, she received holiday, vacation and sick pay,
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 re*263 spect to which no remuneration is paid or payable to him. . . .
Under subsection (i), the question is fairly simple: did the claimant perform services during the weeks in question for which remuneration was paid or payable to her! If the answer is yes, then the claimant was not unemployed during those weeks. In our present case, it is undisputed that the claimant performed no services during the weeks she received benefits. The more difficult question, however, arises under subsection (ii).
Recognizing that the term remuneration has been defined as “payment for services performed,” Gianfelice Unemployment Compensation Case, 396 Pa. 545, 555, 153 A.2d 906, 911 (1959), the question under subsection (ii) asks when services were performed for which the claimant received payment. See Hock v. Unemployment Compensation Board of Review, 50 Pa. Commonwealth Ct. 517, 413 A.2d 444 (1980). Merely because payments are made during the week or weeks in question, does not mean that they are made with respect to those weeks. Hock. In other words, if remuneration is paid with respect to the claim week, the claimant will be deemed not unemployed. See Gianfelice.
Clearly, the claimant’s retention of seniority cannot be considered remuneration. Likewise, the insurance premiums paid by the employer to the insurance company cannot constitute payment to the claimant, much less payment for services performed by her. As to the claimant’s receipt of holiday, vacation
Obdee
And Now, this 5th day of April, 1983, the order of the Unemployment Compensation Board of Review, dated May 18, 1981, No. B-195272, granting benefits to the claimant Sherry B. Carlin is hereby affirmed.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802.
The employer questions the claimant’s availability by stating in its brief that the claimant failed, without good cause, to be available for suitable work. The concepts of good cause and availability arise under separate provisions of the Unemployment Compensation Law, and must be considered separately in determining the eligibility of a claimant for benefits. Under Section 401 of the Law, 43 P.S. §801, a claimant must qualify as being available before benefits can be granted. A showing of “good cause,” or “good faith,” (see, Brilthart Unemployment Compensation Case, 159 Pa. Superior Ct. 567, 49 A.2d 260 (1946)), however, excuses a person from being deemed ineligible from benefits under Section 402 of the Law, 43 P.S. §802, when a claimant fails to apply for suitable work as the department may prescribe, or to accept suitable work when offered to him.
The restriction that the claimant work indoors is not so severe a limitation upon her availability so as to render her ineligible for benefits, See Wincek v. Unemployment Compensation Board of Review, 50 Pa. Commonwealth Ct. 237, 412 A.2d 699 (1980).
In total, the claimant received 21 1/2 days compensation from her employer representing 100 hours of sick leave, four holidays, and five vacation days.
Our legislature has expressed an intent not to treat vacation pay as remuneration for unemployment compensation purposes. See Buss v. Unemployment Compensation Board of Review, 487 Pa. 610, 410 A.2d 779 (1980) and Section 404(d) (ii) of the Law, 43 P.S. §804(d) (ii).