IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Keith Stitt, :

Petitioner :

: No. 657 C.D. 2016

v. :

: Submitted: September 30, 2016

Unemployment Compensation :

Board of Review, :

Respondent :

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE McCULLOUGH FILED: November 1, 2016

Keith Stitt (Claimant) petitions for review of the March 29, 2016 order 

of the Unemployment Compensation Board of Review (Board), which affirmed a 

referee’s decision that denied Claimant benefits to the extent of a special deduction in 

the amount of $569.00 per week beginning with the waiting week ending December 

12, 2015, through the compensable week ending February 13, 2016, under sections 

401, 4(u), and 404(d) of the Unemployment Compensation Law (Law).1

 

1

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

§§801, 753(u), and 804(d), respectively. Section 401 of the Law provides for the payment of 

unemployment benefits to those who are unemployed. Section 4(u) provides, in pertinent part, that 

an individual “shall be deemed unemployed . . . 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.” Section 404(d) provides, in pertinent part, that an 

eligible employee “shall be paid . . . compensation in an amount equal to his weekly benefit rate less 

(Footnote continued on next page...)
2

Claimant is employed full-time in the construction industry and files 

claims for compensation during the winter layoff. During that time, Claimant 

coaches girls’ basketball for Riverview School District (the District). Claimant’s 

position with the District is a supplemental position that is renewed on a yearly basis. 

Claimant receives a lump sum payment of $7,389.00 for his services as head 

basketball coach. The basketball season starts in mid-November and continues for 

thirteen weeks through mid-February. Claimant works six days per week, two to 

three hours per day, during the season. Claimant also works four days per week 

outside of the basketball season. In addition to in-game coaching and practicing 

during the season, Claimant presides over youth camps in the off-season and 

performs other services related to the head coaching position for the benefit of the 

student athletes and the District’s basketball program. If the basketball team qualifies 

for the playoffs, Claimant will receive additional compensation. (Referee’s Findings 

of Fact Nos. 2-11.)

On December 7, 2015, Claimant filed an initial application for 

unemployment compensation benefits with the local service center establishing a 

weekly benefit amount of $573.00 and a partial benefit credit of $172.00, for a 

combined rate of $745.00. (Referee’s Finding of Fact No. 1.) By notice of 

determination dated December 30, 2015, the local service center denied Claimant 

benefits to the extent of a special deduction in the amount of $364.00 per week for 

 

(continued...)

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. . . .”

 
3

the period from December 12, 2015, through February 13, 2016, pursuant to sections 

401, 4(u), and 404(d) of the Law.

2

 

Claimant filed an appeal alleging that his position with the District was 

year round and, hence, his remuneration should be pro-rated over the calendar year. 

The referee held a hearing on January 28, 2016. Claimant testified that he has 

worked for the District for the past thirteen years and that he has served as the varsity 

girls’ basketball head coach for the past seven years. He described this position as a 

year round part-time position. In this regard, he stated that he runs programs 

throughout the summer, including youth camps through August, and that he coaches 

junior high girls’ basketball in September and October. Upon questioning by the 

referee whether such programs were optional, Claimant explained that he feels like he 

would be cheating the children if he did not run these programs over the summer, that 

he was looking out for the best interests of the student athletes, and that he was trying 

to give them the best opportunities to be successful. (Notes of Testimony (N.T.), 

1/28/16, pp. 4, 14.)

Claimant noted that the varsity basketball season starts in mid-November 

and usually ends in mid-March. Upon completion of the season, he receives a lump 

sum payment of roughly $7,500.00.3 The referee questioned whether Claimant had a 

record or a schedule showing the dates that he worked over the summer, but he did 

 

2

The local service center identified Claimant’s lump sum payment as $7,500.00 and then 

divided that amount by the fourteen weeks Claimant worked as head basketball coach to calculate 

Claimant’s weekly remuneration to be $536.00, which was $364.00 above Claimant’s partial benefit 

credit. It is unclear as to how the local service center determined that Claimant worked as a coach 

for the District for fourteen weeks. 

3

The referee subsequently clarified that Claimant received a lump sum payment of 

$7,389.00 for the 2015-2016 season. (N.T., 1/28/16, p. 6.)
4

not. Claimant essentially argued that the local service center’s representation of his 

earnings as over $500.00 per week was inaccurate and that the lump sum payment 

should be pro-rated over the entire year. (N.T., 1/28/16, pp. 4-7.)

 Barbara Kumar, who works in the District’s payroll department, testified 

that Claimant’s position was approved on May 18, 2015, and that the season started 

on November 17, 2015, and runs through mid-February 2016. Kumar acknowledged 

that Claimant performs other activities outside of the season in order to build the 

program. Kumar stated that there is no contract relative to Claimant’s position, 

which she described as a supplemental position. Kumar noted that Claimant’s 

supplemental position had definitive start and end dates and that is what Claimant is 

paid for. She also noted that Claimant receives additional pay if his team goes to the 

playoffs. She presented the school calendar as an exhibit but admitted that it does not 

reflect the dates of the basketball season. (N.T., 1/28/16, pp. 8-11.)

By decision dated February 9, 2016, the referee affirmed the local 

service center’s determination but modified the special deduction amount to $569.00 

per week, which represented Claimant’s pro-rated, seasonal earnings as a basketball 

coach. The referee agreed with the District and concluded that the lump sum paid to 

Claimant was strictly designated for his services during the basketball season. The 

referee noted that such conclusion was supported by the fact that Claimant would 

receive additional compensation if the team made the playoffs, as well as Claimant’s 

own testimony that the off-season programs were for the benefit of his student 

athletes and the program itself. While the referee lauded Claimant’s sense of 

community service, he cited the lack of any evidence that Claimant was obligated by 

contract, either written or implied, to perform these services during the off-season. 
5

Claimant appealed to the Board, which affirmed the referee’s decision and adopted 

and incorporated the referee’s findings and conclusions.

On appeal,4 Claimant reiterates his argument that his lump sum payment 

from the District should be pro-rated over fifty-two weeks, instead of the thirteenweek basketball season. We disagree.

There is no dispute in this case that Claimant was unemployed during 

the period in question and at least entitled to partial unemployment benefits. Indeed, 

the Board found that Claimant received gross wages from the District in the amount 

of $569.00 per week, which was less than the sum of his weekly benefit rate 

($573.00) and his partial benefit credit ($172.00), i.e., a combined rate of $745.00. 

See Section 4(u) of the Law. Section 404(d)(1) of the Law addresses how a partial 

rate is to be calculated, providing that an eligible employee “shall be paid . . . 

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 . . . .”543 P.S. §804(d)(1).

Claimant argues that his gross wages should only be $142.00 per week 

(lump sum of $7,389.00 divided by fifty-two weeks), which would be less than his 

partial benefit credit and thereby entitle him to the full amount of his weekly benefit 

rate. Claimant cites his own testimony regarding the work he performs during the 

 

4 Our scope of review is limited to determining whether constitutional rights have been 

violated, whether an error of law has been committed, or whether findings of fact are supported by 

substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704; Krum v. 

Unemployment Compensation Board of Review, 689 A.2d 330, 332 (Pa. Cmwlth. 1997).

5

Pursuant to this calculation, Claimant would be entitled to partial benefits in the amount of 

$176.00 per week (weekly benefit rate of $573.00 minus the $397.00 per week that Claimant 

received in excess of his partial benefit credit). 
6

off-season. Claimant also relies on three workers’ compensation cases for support: 

Lane Enterprises, Inc. v. Workmen’s Compensation Appeal Board (Patton), 644 A.2d 

726, 728 (Pa. 1994) (holding that an annual bonus, calculated on the basis of yearly 

performance, should be pro-rated over the entire year in which it was earned); Eljer 

Industries v. Workmen’s Compensation Appeal Board (Johnson), 670 A.2d 203, 206 

(Pa. Cmwlth. 1996) (holding that vacation pay, which is earned throughout the year, 

should be pro-rated over the entire calendar year); and Miles v. Workers’ 

Compensation Appeal Board (School District of Philadelphia), 725 A.2d 851, 856 

(Pa. Cmwlth. 1999) (holding that a retroactive lump sum payment covering the 

claimant’s first ninety days of employment should be allocated over that time period).

However, neither Claimant’s testimony nor the cases he cites supports 

his argument herein. In the present case, the Board adopted and incorporated the 

referee’s findings and conclusions. The referee credited the testimony of Kumar, 

who works in the District’s payroll office. Kumar acknowledged that Claimant 

performs services during the off-season but testified that the lump sum payment 

Claimant received strictly represented compensation for his services over the limited 

thirteen-week basketball season. The referee noted that Kumar’s testimony was 

supported by the fact that Claimant would receive extra compensation should the 

team make the playoffs. While the referee lauded Claimant’s service during the offseason, he noted that the record lacked any evidence that Claimant was obligated by 

contract, either written or implied, to perform such services.

The law is well settled that the Board is the ultimate fact-finder and is 

empowered to resolve conflicts in the evidence and to determine the credibility of 

witnesses. DeRiggi v. Unemployment Compensation Board of Review, 856 A.2d 253, 

255 (Pa. Cmwlth. 2004). Indeed, “[t]he Board is the final arbiter of credibility and its 
7

decision will not be disturbed if supported by substantial evidence.” Cooper 

Industries, Inc. v. Unemployment Compensation Board of Review, 555 A.2d 969, 971

(Pa. Cmwlth. 1989). Because substantial evidence supports the referee’s decision 

that Claimant’s lump sum payment covered only the thirteen-week basketball season, 

the referee did not err in pro-rating Claimant’s wages over that period rather than the 

entire year. 

Accordingly, the order of the Board is affirmed.

________________________________

PATRICIA A. McCULLOUGH, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Keith Stitt, :

Petitioner :

: No. 657 C.D. 2016

v. :

:

Unemployment Compensation :

Board of Review, :

Respondent :

ORDER

AND NOW, this 1

st day of November, 2016, the order of the 

Unemployment Compensation Board of Review, dated March 29, 2016, is hereby 

affirmed.

________________________________

PATRICIA A. McCULLOUGH, Judge