IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Raymond B. Brown, :
Petitioner :
:
v. : No. 1293 C.D. 2004
:
Unemployment Compensation Board : Submitted: September 24, 2004
of Review, :
Respondent :
BEFORE: HONORABLE DORIS A. SMITH-RIBNER, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE CHARLES P. MIRARCHI, JR., Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE SIMPSON FILED: November 5, 2004
Raymond B. Brown (Claimant), representing himself, petitions for review of the order of the Unemployment Compensation Board of Review (Board) affirming the decision of the referee. The referee found Claimant ineligible for benefits under Section 404 of the Unemployment Compensation Law (Law).1 We vacate and remand for additional findings of fact.
Claimant filed an application for unemployment benefits under the Law at the Scranton UC service center (service center) on November 9, 2003. C.R. 1 (claim record), p.1, line 3. On November 13, 2003, when Claimant inquired about the status of his application, C.R. 1, p. 1, line 41, he was told he lacked sufficient wages in his base year to qualify for benefits.2 Id. The claim record includes the notation "Clmt states will file wage investigation request and send in copies of pay stubs from 020701 to 021231." C.R. 1, p.1, line 34. The service center received Claimant’s wage investigation request on November 24, 2003, C.R. 1, p.1, line 26, but the claim record contains no further reference to pay stubs. The service center sent Claimant a revised notice of financial determination on December 5, 2003.3 C.R. 1, p.1, line 16. In it, the service center compared Claimant’s highest quarter and his total base year wages to the statutory table.4 It determined Claimant did not have sufficient base year wages to qualify for unemployment benefits.
Claimant appealed to the referee. C.R. 2. The referee held a hearing in mid-January 2004, at which Claimant was the only party to testify. C.R. 5. Claimant testified that he sent the service center copies of all his pay stubs for the third and fourth quarters of 2002 as well as his 2002 federal W-2 form (W-2). C.R. 5, p. 2. Claimant observed the referee did not have those documents with Claimant’s other records at the hearing. He told the referee he brought "all that information with me." Id.
Claimant showed the referee a copy of a pay stub from the third week of November 2002, which showed his income-to-date was $29,048.42. C.R. 5, Cl. Ex. 1. He also showed the referee the W-2 from the same employer. The W-2 showed Claimant’s income for 2002 was $29,088.97, a $40.55 increase from the year-to-date earnings in the November pay stub. Id.
There followed a discussion between Claimant and the referee. The referee noted Claimant’s W-2 did not show in which quarter Claimant earned the $40.55. Claimant replied by pointing out the difference between his year-to-date earnings in his November pay stub and his W-2 wages. The following exchange concluded the hearing.
C. There was $40.55 paid out to me. And this is showing – because of my W-2 form, you can see what my final income was for the year.C.R. 5, p. 2-4.
. . .
R. And what, and what I also have here is $29,048.00.
. . .
C. But on here, it’s saying my income was $29,088.00 for the year. So, the company paid me $29,088.97 for the year.
R. Do you have the original of this? Is there any other thing that you want to add for the record, Mr. Brown?
C. No. that’s it.
R. The Referee will go through the record. I will make a written determination. You will get that determination in the mail in the next couple of weeks.
C. That’s it?
R. That’s it then. The hearing is adjourned. I would have to evaluate the documents before me; and then, I’ll make a determination ---
C. Do you need --
R. As to what your, what your income may be worth.
C. Do you need anything?
R. No. The hearing is closed.
The referee found Claimant’s base year was from July 1, 20025 to June 30, 2003. C.R. 6, p. 1. During the base year, the referee found Claimant earned the following wages:
| 1st quarter 2003 | $0.00 |
| 2nd quarter 2003 | $0.00 |
| 3rd quarter 2002 | $8326. |
| 4th quarter 2002 | $4867. |
The referee reviewed that Section 404(e) of the Law provides a claimant whose highest quarterly base year wage is $8327.00 can qualify for benefits if total base year wages are at least $13,320.00. Because Claimant’s total base year wages were $13,194.00, he fell short of the qualifying amount. Id.
The referee also examined Claimant’s qualifications under Section 404(a)(3).6 He observed Claimant’s fourth lower weekly benefit rate of $332.00 also required a total base year wage of $13,200.00. C.R. 6, p. 1-2. The referee concluded Claimant was financially ineligible for benefits. Id.
Claimant appealed to the Board. The Board, without opinion, adopted and incorporated the referee’s findings and conclusions. C.R. 8.
On appeal to this Court,7 Claimant argues he is eligible for benefits because he received $4,907.66 for the fourth quarter of his base year, a figure he calculated from his pay stubs and the W-2. Using this calculation, Claimant contends his base year wages are $13,234.51, a qualifying wage under Section 404(a)(3) of the Law. Claimant asserts he supplied the referee with his latest pay stub and the W-2, and told the referee that he had available his pay stubs from the third and fourth quarter of 2002. C.R. 5, p.2. Claimant contends the referee did not review the appropriate pay stubs for the fourth quarter of the base year.
The Board counters, because the W-2 showed year-to-date earnings, that document could not show the $40.55 was not earned outside the base year. In support of its hypothesis that Claimant may have received the $40.55 outside the base year, the Board points to the claim file, C.R. 1, which includes the master claim inquiry file. C.R. 1, p. 5. The Board argues the master claim inquiry file indicated Claimant earned $73.00 in the second quarter of 2002. Board Br. at 7. According to the Board, this fact provides an indication "the $40.55 was earned in a quarter that was outside of Claimant’s base year." Id. at 8.
The Court reviewed the master claim inquiry file. We note it includes a notation "73 000" under the second quarter of 2003. C.R. 1, p. 5. It is unclear to this Court how, or if, that "73 000" notation translates into $73.00. If it does, we note Claimant may well be eligible for benefits. His base year includes the second quarter of 2003.
The Board supports the referee’s conclusion of ineligibility. The Board asserts it did not disregard evidence; rather, the evidence was not available. Moreover, the Board contends Claimant failed to make a request to submit additional evidence in the course of his appeal. Merida v. Unemployment Comp. Bd. of Review, 543 A.2d 593 (Pa. Cmwlth. 1988). Because Claimant did not raise an additional evidence issue before it, the Board argues Claimant waived any request for a remand.
We disagree. Claimant’s appeal to the Board included the following:
My pay stubs and W2 shows that in the fourth quarter I made $4,907.66. I did present this at the hearing on 1/13/04. [The referee] did not accept my offer of copies as proof. I have inclosed [sic] this info.8 I wish to file another appeal for this to be reviewed and considered.
C.R. 7, p. 3. A claimant’s burden in a notice of appeal may be satisfied by simply setting forth "some indication, however inartfully stated, of precisely what error(s) occurred and where the tribunal should focus its attention." Merida, 543 A.2d at 595 (emphasis in the original).
Under the Law, the Board has the discretion to decide whether to grant a request for remand. Section 504 of the Law, 43 P.S. §824. Absent an abuse of discretion, we will not reverse a decision denying a remand request. Flores v. Unemployment Comp. Bd. of Review, 686 A.2d 66 (Pa. Cmwlth. 1996). However, the Board cannot ignore its own regulations. Cugini v. Unemployment Comp. Bd. of Review, 511 Pa. 264, 512 A.2d 1169 (1986). Section §101.104(c)(1) of 34 Pa. Code provides in pertinent part:
The further appeal shall be allowed and additional evidence required in any of the following circumstances: (1) Whenever the further appeal involves a material point on which the record below is silent or incomplete or appears to be erroneous.34 Pa. Code §101.104(c)(1) (emphasis added).
Such is the situation here. The Board’s decision was based on the fact that Claimant did not receive qualifying wages or that he did not prove when those wages were received. These are material points.
We vacate and remand for a determination of when and how much Clamant earned in the base year of July 1, 2002 to June 30, 2003. We direct the Board hold an expedited hearing with its decision rendered within sixty (60) days and allow Claimant to provide further documentation in support of his position.
ROBERT SIMPSON, Judge
| Part A Highest Quarterly Wage |
Part B Rate of Compensation |
Part C Amount of Qualifying Wages |
Part D Compensation 26 Weeks |
Part E Compensation 16 Weeks |
|---|---|---|---|---|
| 8238-8262 | 332 | 13200 | 8632 | 5312 |
| 8263-8287 | 333 | 13240 | 8658 | 5328 |
| 8288-8312 | 334 | 13280 | 8684 | 5344 |
| 8313-8337 | 335 | 13320 | 8710 | 5360 |