IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jon Galante, : Petitioner :

:

v. : No. 1345 C.D. 2015

: Submitted: December 24, 2015 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 JUDGE SIMPSON FILED: June 14, 2016

Jon Galante (Claimant) , representing himself, asks whether the

Unemployment Compensatio n Board of Review (Board) erred in affirming a

referee’s (Ref

eree) decision that Claimant d id not have covered wages from Butler

County (Employer) under Section 1201(b )(1) of the Unemployment Compensation

Law (Law)

. 1 Upon review, affirm

.

I. Background

Employer appointed Claimant to his position as a jury selection

commissioner to fill a vacancy created when the former office holder resigned to

take a different position

. After ap pointment, Claimant ran for the office and won

1 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended , 43 P.S. §911(b)(1).2

the May 2013 primary election

. H owever, Employer later abolished the position of

jury selection commissioner . The abolition of that position was effective at the end

of Claimant’s appointed term in January 2014. Certified Record (C.R.), Item #11,

Referee’s Dec.

, 4/ 22/15, Findings of Fact (F.F.) Nos. 7, 11

- 12.

Claimant filed an application for unemployment compensation ( UC )

benefits

. Thereafter, Claimant received a notice of financial de termination

(Notice) that he wa s financially eligible for UC benefits. The No tice listed wa ges

from various positions Claimant held during the base year. Claimant subsequently

filed an appeal of his Notice to the l ocal s ervice c enter

, assert ing that wages from

Employer were not listed on his Notice during the base year.

Specifically

, Claimant filed an application for UC benefits with an

effective date of January 4, 2015, establishing a base year period of October 1,

2013 through September 30, 2014. Claimant was thereafter issued a Notice

indicating he wa s financially eli gible for a weekly benefit rate of $302. Claimant

filed an appeal to his Notice based on his missing wages from Butler County in the

fourth quarter of 2013 and the first quarter of 2014. F.F. Nos. 2

- 3, 5. 2

2 Claimant’s Notice listed wages from Butler Area School District of $751 for the fourth quarter of 2013, $0 for the first quarter of 2014, $0 for the second quarter of 2014, and $0 for the third quarter of 2014. The determination also listed wages from Junior Achievement of $3,653 for the fourth quarter of 2013, $7,500 for the first quarter of 2014, $7,500 for the second quarter of 2014 and $7,500 for the third quarter of 2014. Claimant was also employed with Butler County from October 31, 2012 through January 6, 2014 as a jury selection commissioner at an annual salary of $18,613.77. Certified Record, Item #11, Referee’s Dec., 4/22/15, Findings of
Fact Nos. 1, 4.3 T he service center vacated the Notice and initi ated a wage

investigation to establish if Claimant had co vered employment with Employer as a

jury selection commissioner for purposes of UC benefits. F.F. No. 6.

The wage investigation deter mined that Claimant held an elected

position

, and that w ages pa id to elected officials we re exempt from UC coverage.

Thereafter, Claimant received a revised Notice from the service center listing the

same wages as in his original Notice. F.F. No. 8.

Claimant appealed the revised Notice to a referee, who held a hearing

.

A fter the hearing, the referee issued a decision affirming the service center ’s

revised Notice. T he referee reasoned :

A representative in the Status Determination Unit in Harrisburg conducted the wage investigation and

determined [C l aimant ] was in an elected position and per Article VII, Section 1201(B)(1) of the [UC] Law, wages paid to elected officials are listed as exempt from [UC] coverage. Although [Claimant] may have been appointed as a jury [selection] commissioner to fill a

v acancy by the previous jury [selection] commissioner who resigned, the position of jury [selection] commissioner is an elected position and, therefore, [Claimant] cannot use these wages for [UC] purposes.

Referee’s Dec. at 2.

Claimant appealed to the B o ard. The Board adopted the r eferee’s

findings and conclusions and af firmed the r eferee’s decision. The Board added:4 The Board understands the language the claimant cites [in his brief to the Board]. However, this is clearly stated to not be the law, and the Board agrees with both the Department and Referee that an appointment to an elected position does not change the elected position to covered employment.

C.R., Item No. 15, B d

. Order

, 7/1/15 at 1

. Claimant now petitions for review to

this Court

.

II. Issue

On appeal

, 3 Claimant contends the Board erred when it affirmed the

Referee’s determination that Claimant was an elected official, not in an appointed

position, and thus did not have covered employment with Employer for UC

purposes.

III. Discussion

A. Contentions

At the outset, Claim an t maintains he filed an internet initial claim

(IIC) and answered “yes” to the question asking “ [ a ] ppointed to this position ” and

answered “no” to the quest i on “[ e]lected to this position.” C.R. , Item No. 2 at 5

.

Claimant notes that the President Judge of Butler County appointed Claimant to

the position. Claimant argues his employment with Employer in an appointed

posi tion , rather than in an elected position

, renders wages earned with Employer as

covered wages for purposes of UC benefits

.

3 Our review is limited to determining whether constitutional rights were violated

, whether an error of law was committed or w hethe r the Board’s findings of fact we re supported by substantial evidence. Pearson v. Unemployment Comp. B d. of Review , 689 A.2d 352 (Pa. Cmwlth. 1997).5 More particularly

, Claimant contends there is a distinction between

earning wages in an appointed position and earning wages in an elected position

for purposes of receiving UC benefits. In support of this distinction

, Claimant

assert s the Department of Labor & Industry’s (Department) website stated, with

emphasis added :

Remuneration paid for services performed as an

elected official are exempt from coverage under Section 1201(b) of the UC Law. Therefore, the wages paid to the
individual elected into office are not taxable for employer or employee UC contributions purposes. However, there is no exclusion provision contained in the UC Law for services performed by an individual who is appointed to the position

. Thus, the appointed official would be performing services in employment covered under the
UC Law unless the individual is designated as serving in

a major non

- tenured policymaking or advisory position. Otherwise, the individual appointed to an elected office is required to pay employee UC withholding

c ontributions

. [ 4 ]

Claimant asserts none of the parties disputed the fact of his

appointment to his position. Thus, Claimant asserts

, because the Department

differentiates between performing services as an individual elected into office and

4 See http://www.portal.state.pa.us/portal/server.pt/community/pamphlets/11304/ucp 25 pa employee uc withholdings/562865 (last visited by Claimant July 10, 2015); see also Unemployment Compensation (UC) services, UC pamphlet UCP

- 25 PA Employee UC Withholding Contributions. UC pamphlet UCP

- 25 is no longer available on the Department’s website. Both parties provide the identical quoted language to this document in their briefs. Claimant’s B r. at 8

- 9;

Board ’s B r. at 7

- 8.6

an individual appointed to an elected office, an employee appointed to an elected

office must have those wages considered for UC purposes. 5

The Board responds that it properly con cluded Claimant’s

appointment to an elected position did not establish cove red employment for

purposes of UC benefits

. The Board asserts that pursuant to Section 1201(b)(1) of

the Law, 43 P.S. §911(b)(1), Claimant’s wages from his position as jury selection

commissioner are excluded from the definition of employment for UC purpo ses
, notwithstanding his appointment, rather than election to the position.

Section 1201 of the Law

, entitled, “ Political subdivision

e mploye [ e ] s, ” states :

(a) S ervice performed after December 31, 1977, in the employ of any of the instrumentalities or any political
subdivision of this Commonwealth or any of its instrumentalities or any instrumentality of more than one of the foregoing or any instrumentality which is jointly owned by this Commonwealth or a political subdivision
thereof and one or more ot her states or political subdivisions of this or other states provided that such service is excluded from ‘employment’ as defined in the Federal Unemployment Tax Act by section 3306(c)(7) of
that act and is not excluded from ‘ employment’ under

5 Claimant apparently concedes that he did not pay employee UC withholding contributions. He argues, without citation to authority, that Employer should be penalized for its failure to withhold and pay UC contributions. He suggests the penalty be that Employer should pay both the employer and the employe e UC contributions. Claimant’s Br. at 6, 12. The Board does not respond to this argum ent. Although this issue is waived for failure of the parties to develop it, there may be a statutory basis for the relief Claimant seeks. See Section 1202.1 of the

La w, a dded by the Act of July 6, 1977, P.L. 41, as amended , 43 P.S. §912.1 (“Liability for contributions”); Section 1204 of the Law, a dded by the Act of September 27, 1971, P.L. 460, 43 P.S. §914 (“No offset of benefits”).7 section 4(l) (4) of this act [ (“ definitions ”) ]

, shall be deemed to constitute employment subject to this act with the exceptions hereinafter set forth in section 1201(b)

.

(b)(1) Elected officials

.

(2) Inmates of custodial or penal institutions who receive compensation for services rendered therein.

(3) All department heads and members of boards and commissions, appointed by the Governor with or without
the consent of one or both branches of the General Assembly.

(4) Members of a legislative body, or members of the judiciary, of the Commonwealth or a political
subdivision.

(5) Individuals employed as part of any unemployment
work

- relief or work

- trainin g program assisted or financed in whole or in part by any Federal agency or an agency of a State or political subdivision thereof, by an individual receiving such work relief or work training.

(6) Students employed as defined in section 4( l )(4)(10)(B) and (C).

(7) Members of the State National Guard or Air National
Guard.

(8) Employees serving on a temporary basis in case of fire, storm, snow, earthquake, flood or similar

emergency.

(9) Individuals serving in positions which, under or pursuant to the la ws of this Commonwealth, are designated as (i) a major nontenured policymaking or advisory position, or (ii) a policymaking position the performance of the duties of which ordinarily does not require more than eight hours per week.8

43 P.S. §911 (a), (b) (em

phasis added)

. Thus, the Board asserts, it is clear from a

reading of the statute that the elected position of jury selection commissioner is

statutorily excluded from employment for purposes of UC benefits.

The Board further highlights that an agency representative provided

an interpretation of the Law at the hearing

. T he representative testified Claimant

was appointed to an elected position and that th e wages earned in that position

were not counted for purpose of UC benefits under Section 1201 (b)(1) o f the Law

.

Thus

, Christian Edwards (Edwards) , Supervisor of the Status Determinations Unit

Accounting Service Unemployment Tax in the Department

, testified as follows :

[ R eferee] All right. And, Mr. Edwards, what would you have for testimony regarding this issue?

[Edwards] The wage investigation was initiated by the Service Center, to establish whether the earnings from Butler County were covered employment. It was established that the Jury [Selection] Commissioner position was an elected position and was not covered wages for Pennsylvania Unemployment purposes, due to PAUC Law, Section 1201 (b), which exempts wages paid

t o elected officials and this also includes individuals who are appointed to serve in lieu of another elected official

wh o has vacated the position and his term has not yet expired. Therefore, it was determined that the wages were not covered for unemployment.

C.R., Item #10, Referee’s Hr’g, Notes of Testimony, (N.T.), 4/12/15, at 8

.

B. Analysis

Section 1201 (a) of the Law state s that

, services performed by political

subdivision employe es are not excluded from the definition of “employment”9

under the Law , but

- for the exceptions set forth in Section 1201(b)

. Section

1201(b)(1) excludes services of “elected officials

. ”

If the phrase “elected officials” focuses on the persons holding an

elected office, the services of a person appointed to that office could be

“employment” under the Law. This i s Claimant’s argument, and he asserts the

statutory language is clear.

However, the language of the “Political subdivision employees”

provisi on does not clearly support Claimant’s position when viewed in its entirety.

Read as a whole, paragraph (a) provides the general rule: service by employees of

political subdivisions shall be de emed “employment” under the Law . Paragraph

(b) , however, sets forth exceptions. Each subdivision of paragraph (b) describes a n

excepted position, without regard to the specific characteristics of the individual

holding the position

. The excepted positio ns are described in a way where

discontinuance of employment can be anticipated.

Thus, when viewed through the prism of the entire statutory provision,

a person holding an office usually filled by election, which has a known, defined

term, can foresee a change of circum stances at the end of the term.

O ur reading of the statutory language is consistent with cases

addressing another excepted position described in paragraph (b): the major

nontenured policymaking or advisory position. 43 P.S. §911(b)(9). In determining

whether services of an individual in a policymaking position are excepted from the10

definiti on of “employment” under the Law, we focus not on the individual’ s

circumstances ; rather, we focus on an official designation of the position function

pursuant to the laws of this Commonwealth. Conroy v. Unemployment Comp. Bd.

of Review , 693 A.2d 254, 256 (Pa. Cmwlth. 1997) (“Claimant’s actual activities as

Borough Police Chief are immaterial to the determination of whether he is entitled

to unemployment benefits.”). Our Court explained the reason for the exclusion:

The logic of [the Law] is plain. The exclusion imposes ineligibility on the basis that any occupant of such a position can anticipate the possibility of job termination upon a change of administration, so that unemployment in such circumstances cannot be regarded as sudden or unexpected.

Id. at 256 (quoting Gahres v. Unemployment Comp. Bd. of Review , 433 A .2d 152,

154 (Pa. Cmwlth. 1981) ) ; s ee also City of Phila

. v. Unemployment Comp. Bd. of

Review , 448 A.2d 687 (Pa. Cmwlth. 1982).

We can apply to this case the rationale applied to the majo r

nontenured policymaking cases . In doing so, we conclude that a person in a

position usually filled by election can anticipate at the beginning of service the

possibility of j ob termination at the end of an elected term . The same anticipation

obtains reg ardless of whether the individual is elected to a full term or, as here, is

appointed to complete the elected term of another. Either way, unemployment at

the end of the elected term cannot be regarded as sudden or unexpected.

Therefore, there is a ratio nal basis for the exception of services rendered by

persons in an elected office from the definition of “employment” under the Law.11 For the foregoing reasons , we affirm

.

ROBERT SIMPSON, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jon Galante, : Petitioner :

:

v. : No. 1345 C.D. 2015

: Unemployment Compensation : Board of Review, : Respondent :

O R D E R

AND NOW , this 14 th day of June , 2016, the order of the

Unemployment Compensation Board of Review is AFFIRMED.

ROBERT SIMPSON, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jon Galante, : : No. 1345 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

DISSENTING OPINION

BY SENIOR JUDGE FRIEDMAN FILED: June 14, 2016

I respectfully dissent and would conclude that C laimant was not an

“elected official” and

, thus, his service in the position of jury selection commissioner

constitute d employment for unemployment compensation (UC) purposes.

Accordingly, I would reverse the Board’s decision.

S ection 1201 (a) of the Unemploy m ent Compensation Law (Law) 1 states

that service provided by political subdivision employees constitutes employment for

UC purposes

. Section 1201(b)(1) of the Law specifically ex cepts “ elected officials”

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

, 43 P.S.
§911(a)

.RSF

- 2

-

from the defin it ion of em plo yment for UC p urposes. 43 P.S. §911(b)(1) ( e mphasis

added)

.

An “elected official” is a person who is elected by the people to a public

office. Here, the people did not elect Claimant to serve in the position of jury

se lection commissioner. Rather, because of a vacancy in that office

, the president

jud ge “ appoint[ed] ” Claimant to the position in accordance with section 2122(c) of

the Judicial Code, 42 Pa. C.S. §2122(c) (emphasis added)

. Although Claimant was

appointed to a position that is generally filled by election, Claimant, by filling the

vacancy for the unexpired term, did not and could not convert his “appointment” to

an “election.” Thus, as an appointed official, Claimant is not covered by the

exception in section 1201(b)(1) of the Law, which is applicable only to elected

officials.

The majority states that “ w hen viewed through the prism of the entire

statutory provision , a person holding an office usually filled by election, wh ich has a

known , defined term can foresee a change of circumstances at the end of the term.”

(Maj. Op. at 9.) Thus, because “discontinuance of employment can be anticipated

, ”

the majority concludes that Claimant is an “elected official.” ( Id .)

I do not believe this court should view the statute through a prism.

“When the words of a statute are clear and free from all ambiguity, the letter of it is

not to be disregarded under the pretext of pursuing its spirit.” Section 1921(b) of the

Statutory Cons truction Act, 1 Pa. C.S. §1921(b). The ex ception set forth in section

1201(b) (1) of the Law is clear , not ambiguous, and only applies to “electedRSF

- 3

-

officials

. ” 2 Because Claimant was never elected to the position of jury selection

commissioner , the exemption does not apply to him . Additionally, the Law “ is

remedial legislation whose benefit provisions are to be lib erally construed in the

claimant’s favor. ” Micciche v. Unemployment Compensation Board of Review , 461

A.2d 914, 916 n.3 (Pa. Cmwlth. 1983)

. I re spectfully submit that the majority’s

la bored interpretation of the Law violates the principles of statutory construction and

fails to liberal ly interpret the Law in Claimant’s favor.

For the se reasons, I respectfully dissent

.

___________________________________ ROCHELLE S. FRIEDMAN, Senior Judge

2 I also note that section 1201(b)(4) of the Law excepts “[m]embers of a legislative body, or
members of the judiciary, of the Commonwealth or a politic al subdivision.” Unlike section
1201(b)(1), section 1201(b)(4) does not differentiate between those members that are elected and those that are appointed. I submit that the legislature knowingly chose its words when drafting the exceptions

.