           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),
affirming the decision of a referee to deny Claimant unemployment compensation
(UC) benefits pursuant to sections 401(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 (Employer)
until Employer’s plant permanently closed 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).
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
benefit year, Claimant filed a new application for UC benefits on December 7, 2014.
On December 10, 2014, the local 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 benefit 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 sections 401(c) and 4(w)(2) of the Law.                     Claimant
appealed to the UCBR, which 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 as wages. We disagree.




       2
         Our review is limited to determining whether constitutional rights were violated, whether
the adjudication is in accordance with 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.


                                                2
            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 preceding 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). Therefore, the UCBR correctly applied section 4(w)(2) of
the Law.

                                          3
Accordingly, we affirm.



                          ___________________________________
                          ROCHELLE S. FRIEDMAN, Senior Judge




                             4
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


David L. Wetzel,                      :
                                      : No. 1328 C.D. 2015
                        Petitioner    :
                                      :
                   v.                 :
                                      :
Unemployment Compensation             :
Board of Review,                      :
                                      :
                        Respondent    :



                                     ORDER


           AND NOW, this 9th day of February, 2016, we hereby affirm the June 9,
2015, order of the Unemployment Compensation Board of Review.



                                      ___________________________________
                                      ROCHELLE S. FRIEDMAN, Senior Judge
