IN THE COMMONWEALTH COURT OF PENNSYLVANIA

David L. Wetzel, :

: No. 1328 C.D. 2015

Petitioner : Submitted: December 24, 2015

:

v. :

: Unemployment Compensation :

Board of Review, :

: Respondent :

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY SENIOR JUDGE FRIEDMAN FILED: February 9, 2016

David L. Wetzel (Claimant) petitions for review, pro se

, of the June 9,

2015, order of the Unemployment Compensation Board of Review (UCBR),

affirm ing the decision of a referee to deny Claimant unemployment compensation

(UC) benefits pursuant to sections 4 01(c) and 4(w)(2) of the Unemployment

Compensation Law (Law)

. 1 The UCBR concluded that Claimant did not make a

valid application for benefits because he did not have earned wages. We affirm.

Claimant worked for Baldwin Hardware

– Black and Decker (Employ er)

until Employer’s plant permanently clos ed on December 6, 2013. On December 8,

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

§§ 801(c), 753(w)(2).2

2013, Claimant filed an application for UC benefits . The local service center issued a

determination finding Claimant eligible for UC benefits. Upon expiration of that

ben efit year, Claimant filed a new application for UC benefits on December 7, 2014

.

On December 10, 2014, the loca l service center found Claimant financially eligible

for UC benefits. On March 10, 2015, Claimant informed the local service center that

he had not worked since December 6, 2013. On March 11, 2015, the local service

center issued a second determination disapproving Claimant’s December 7, 2014,

application because Claimant “did not work and earn six times [his] preceding

weekly benefi t rate (which totals $1938.00) in the period between [his] preceding

application date and [his] current application date.” ( Notice of Determination,

3/11/15, at 1. )

Claimant appealed to the referee who conducted a hearing at which

Claimant testified. The referee found that Claimant “had no earnings after filing his

2013 application.” (Ref’s Findings of Fact, No. 2.) The referee affirmed the denial

of UC benefits pursuant to section s 401(c) and 4(w)(2) of the Law. Claimant

appealed to the UCBR, whic h adopted and incorporated the referee’s findings of fact

and conclusions of law and affirmed. Claimant now petitions this court for review. 2

Claimant contends that the UCBR erred in failing to consider the

severance payments he received from Employer a s wages

. We disagree.

2 Our review is limited to determining whether constitutional rights were violated, whether

the adjudication is in accordance w ith the law, and whether the necessary findings of fact are

supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704.3

Section 401(c) of the Law provides that “[c]ompensation shall be

payable to any employe who is or becomes unemployed, and who . . . [h]as made a

valid application for benefits with respect to the benefit year for which compensation

is claimed

. ” 43 P.S. §801(c).

Section 4 (w)(2) of the Law provides that :

[a]n application for benefits filed after the

termination of a preceding benefit year by an individual

shall not be considered a Valid Application for Benefits

within the meaning of this subsection, unless such

individual has, subsequent to the beginning of such

preceding benefit year and prior to the filing of such

application, worked and earned wages in “employment” as

defined in this act in an amount equal to or in excess of six

(6) times his weekly benefit rate in effect during such

preceding benefit year.

43 P.S. §753(w)(2) (emphasis added)

.

In Joyce v. Unemployment Compensation Board of Review , 548 A.2d

387, 388 (Pa. Cmwlth. 1988), this court determined that severance pay was not

earned and, thus, may not be used to calculate a claimant’s earnings under section

4(w)(2) of the Law.

Here, Claimant’s only income during the pre ceding benefit year came

from his severance payments. Because severance payments are not earned, Claimant

did not “work[] and earn[] wages in ‘ employment ’ . . . during such preceding benefit

year.” 43 P.S. §753(w)(2). The refore, the UCBR correctly applied sec tion 4(w)(2) of

the Law.4

Accordingly, we affirm.

___________________________________ ROCHELLE S. FRIEDMAN, Senior JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

David L. Wetzel, :

: No. 1328 C.D. 2015

Petitioner :

:

v. :

: Unemployment Compensation :

Board of Review, :

: Respondent :

O R D E R

AND NOW, this 9 th day of February , 201 6

, we hereby affirm the June 9,

2015, order of the Unemployment Compensation Board of Review.

___________________________________ ROCHELLE S. FRIEDMAN, Senior Judge