          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jennifer M. Hemme,                             :
                             Petitioner        :
                                               :
             v.                                :    No. 73 C.D. 2019
                                               :    Submitted: May 10, 2019
Unemployment Compensation                      :
Board of Review,                               :
                    Respondent                 :


BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE PATRICIA A. McCULLOUGH, Judge
        HONORABLE MICHAEL H. WOJCIK, Judge


OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE BROBSON                               FILED: August 21, 2019


             Petitioner Jennifer M. Hemme (Claimant), pro se, petitions for review
of an order of the Unemployment Compensation Board of Review (Board), which
affirmed a decision of a Referee, holding that Claimant was not eligible for benefits
under Section 404(c) of the Unemployment Compensation Law (Law),1 relating to

      1
          Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended,
43 P.S. § 804(c). Section 404(c) of the Law provides:
      (c) If an otherwise eligible employe[e] has base year wages in an amount equal to
      or in excess of the amount of qualifying wages appearing in Part C of the Table
      Specified for the Determination of Rate and Amount of Benefits on the line on
      which in Part B there appears his weekly benefit rate, as determined under
      subsection (a) of this section, and had eighteen (18) or more credit weeks during
      his base year, he shall be entitled during his benefit year to the amount appearing
      in Part B on said line multiplied by the number of credit weeks during his base year,
financial eligibility. For the reasons set forth below, we now affirm the Board’s
order.
                Claimant worked for Source 4 Teachers, Riverview Intermediate
Unit 6, and Northwest Tri-County Intermediate Unit 5 (Employers) as a substitute
teacher.2 Thereafter, Claimant filed an application for unemployment compensation
benefits, effective April 1, 2018. The Erie Unemployment Compensation Service
Center (Service Center) determined that Claimant was not financially eligible for
unemployment compensation benefits. (Certified Record (C.R.), Item No. 3, at 1.)
                Claimant appealed this determination to the Referee, who conducted a
hearing. Employers did not participate in the hearing. (C.R., Item No. 8.) Claimant
testified and entered evidence into the record before the Referee. (Id.) Claimant
testified that she appealed the “fact that [Employers] only paid [her] this amount of
money instead of a salary for the year.” (Id. at 5.) Claimant alleged that Employers
did not pay her a fair wage and she has filed claims with the Wage and Hour Division
and the Magisterial District Court. (Id. at 6.)
                The Referee made the following findings of fact:
                1.     [Claimant] filed an application for unemployment
                       compensation benefits effective April 1, 2018.
                2.     [Claimant’s] base year includes the first, second,
                       third and fourth quarters of 2017.


         up to a maximum of twenty-six (26). Notwithstanding any other provision of this
         act, any employe[e] with less than eighteen (18) credit weeks during the
         employe[e]’s base year shall be ineligible to receive any amount of compensation.
         Due to the nature of Claimant’s position, she worked as a substitute teacher in multiple
         2

school districts and for multiple employers. According to the record, Claimant received wages
from General McLane School District, Harbor Creek School District, Northwestern School
District, Union City Area School District, Northwest Tri-County Intermediate Unit,
Source 4 Teachers LLC, NBM Testing Inc., and the State of Maryland. (Certified Record, (C.R.)
Item No. 2.)

                                                2
            3.    [Claimant] had no earnings in the first quarter
                  of 2017.
            4.    [Claimant] had reported earnings of $142 in the
                  second quarter of 2017.
            5.    [Claimant] had reported earnings of $135 in the
                  third quarter of 2017.
            6.    [Claimant] had reported earnings of $716 in the
                  fourth quarter of 2017.
            7.    [Claimant’s] total base year earnings were $993.

(C.R., Item No. 9.) Based on these findings, the Referee affirmed the Service
Center’s decision, determining that Claimant was not financially eligible for
unemployment compensation benefits pursuant to Section 404(c) of the Law. (Id.)
The Referee based this decision on his calculation of Claimant’s base year wages
and Claimant’s failure to sustain her burden of proving sufficient base year wages.
(Id.)
            Claimant appealed the decision to the Board. (C.R., Item No. 10.) The
Board adopted and incorporated the Referee’s findings and concluded that the
Referee properly determined that Claimant was not financially eligible for
unemployment compensation benefits. (C.R., Item No. 12.) In so doing, the Board
reasoned:
            In her appeal, [C]laimant provides information as to her
            interactions with the state of Maryland regarding
            unemployment compensation in that state. [C]laimant did
            not provide any of that information at the hearing or testify
            to anything regarding Maryland unemployment or wages
            from that state. Therefore, the Board may not consider
            such extra-record evidence in reaching its decision and
            avoided doing so here. Further, by not raising the issue at
            the hearing, [C]laimant has waived consideration of that
            issue. [C]laimant also continues to maintain that her
            financial eligibility should be calculated based on the fair
            salary of all school teachers in the school district where
            [she] worked. This method of calculating one’s financial
                                         3
                eligibility is not provided for in the Law. Finally,
                [C]laimant asks questions in an email sent to the Board
                and states that she was unable to get through to the
                Department of Labor & Industry (Department) for answers
                to her questions. The Board suggests that for answers to
                her questions, she use the designated phone located at
                CareerLink offices, which will provide her with a direct
                line to a Department representative.

(Id. (emphasis omitted).)
                On appeal,3 Claimant challenges the Board’s conclusion that she was
not financially eligible for unemployment compensation benefits. Specifically,
Claimant argues that she did not receive the proper salary for her prior work
experience and certification level. Claimant claims that the salary that she should
have received should be included in the calculation of her base year wages in
determining whether Claimant was financially eligible for unemployment
compensation benefits. The Board argues that this Court lacks jurisdiction to decide
whether Employers paid Claimant incorrectly.4
                “A claimant has the burden to prove financial eligibility for
unemployment benefits.”             Pagliei v. Unemployment Comp. Bd. of Review,
37 A.3d 24, 26 (Pa. Cmwlth. 2012). To be financially eligible for benefits, a
claimant must satisfy the earnings requirements of Sections 4015 and 404 of the Law.

       3
         Our scope of review of the Board’s decision is limited to determining whether necessary
findings of fact are supported by substantial evidence, whether the adjudication is in accordance
with the law, and whether constitutional rights were violated. 2 Pa. C.S. § 704.
       4
         We note that the documents presented by the Board regarding the Referee and Board
decisions are in regards to an earlier proceeding involving Claimant. (Respondent’s Br. at App.)
The relevant documents are in the certified record, and we have relied upon them.
       5
           Section 401 of the Law, 43 P.S. § 801. Section 401(a) of the Law provides:
       Compensation shall be payable to any employe[e] who is or becomes unemployed,
       and who—


                                                 4
Moreover, “Sections 401 and 404 of the Law are explicit and leave no room for a
more flexible, compassionate interpretation.” Devine v. Unemployment Comp. Bd.
of Review, 101 A.3d 1235, 1239 (Pa. Cmwlth. 2014).
               In order to be financially eligible for unemployment compensation
benefits under Section 401(a) of the Law, a claimant must show that she was “paid
wages for employment as required by [S]ection 404(c)” of the Law and that “not
less than thirty-seven per centum (37%) of the employe[e]’s total base year wages
[were] paid in one or more quarters, other than the highest quarter in such
employe[e]’s base year.”6 Pursuant to Section 404(c) of the Law, “an otherwise
eligible employe[e] [must have] base year wages in an amount equal to or in excess
of the amount of qualifying wages appearing in Part C of the Table Specified for the
Determination of Rate and Amount of Benefits” (Table) in order to receive benefits.
The Table provides that a claimant must have quarterly wages in the amount of at
least $1,688 and total qualifying wages in the amount of at least $2,718.
Section 4(e)(1) of the Law, 43 P.S. § 804(e)(1).




       (a) Satisfies both of the following requirements:
               (1) Has, within his base year, been paid wages for employment as required
               by section 404(c) of this act.
               (2) Except as provided in section 404(a)(3) and (e)(1) and (2), not less than
               thirty-seven per centum (37%) of the employe[e]’s total base year wages
               have been paid in one or more quarters, other than the highest quarter in
               such employe[e]’s base year.
       6
          The term “base year” is defined as “the first four of the last five completed calendar
quarters immediately preceding the first day of an individual’s benefit year.” Section 4(a) of the
Law, 43 P.S. § 753(a). “Wages” are defined as “all remuneration . . . paid by an employer to an
individual with respect to his employment.” Section 4(x) of the Law, 43 P.S. § 753(x).
Section 4(x) of the Law identifies certain types of remuneration not included under the term
“wages,” but none of the excluded forms of remuneration are relevant here.

                                                5
             Here, Claimant did not earn at least $1,688 in any of her base year
quarters, and her total base year wages were only $993. (C.R., Item No. 9 at 2.)
Thus, Claimant was not financially eligible for unemployment compensation
benefits under Section 404(c) of the Law.
             Claimant, nevertheless, argues that her financial eligibility should be
determined based on what she should have earned as a salaried teacher, accounting
for her educational credentials and her past experience under collective bargaining,
rather than what Employers actually paid Claimant during her base year. Claimant’s
suggested method of calculating her financial eligibility, however, is not supported
by the Law. Financial eligibility is based on wages actually paid to a claimant, not
what a claimant believes she should have been paid.
             Claimant next argues that based on her education level, Employers
erred when they placed Claimant on the day-to-day substitute list, thus depriving her
of potential wages. Again, the position that Claimant should have received is not a
consideration in the calculation determination for financial eligibility. Only the
wages actually paid to Claimant can be considered in the calculation.
             Finally, Claimant cites to various unemployment compensation
regulations of the Department in support of her position. The first Department
regulation she cites, pertaining to full-time employment, provides guidance on how
to determine a claimant’s full-time work when determining whether a claimant is
employed, which is not relevant to the matter now before the Court. See 34 Pa. Code
§ 65.73.   The second Department regulation cited by Claimant, pertaining to
computation of weekly wage, provides, in part, that “[i]t is an objective of the
Pennsylvania Unemployment Compensation Program that an unemployed, eligible
claimant shall be compensated for at least 50% of his weekly wage loss.” 34 Pa.


                                         6
Code § 65.113(c) (emphasis added). Claimant points to this regulation as a basis for
entitlement to unemployment compensation benefits. Claimant, however, is not an
eligible claimant, and, therefore, this regulation does not apply to Claimant. The
third Department regulation cited by Claimant merely provides guidance as to how
to calculate the full-time weekly wage, and Claimant does not articulate and we
cannot discern how this regulation applies to the present case. See 34 Pa. Code §
65.115. Finally, Claimant cites to regulations of the State Board of Education in
support of her contention that Employers should have paid her higher wages. See
22 Pa. Code § 49.153 (Vocational Day-to-Day Substitute Permit) and 22 Pa. Code §
49.102 (Educational Specialist I). Claimant claims that Employers incorrectly
placed her in this employment category of “Day-to-Day Substitute” and should have
placed her in the category of “Educational Specialist I” due to her experience level
and because she did not require further training. The issue before this Court is
whether Claimant, based on her actual wages, is eligible for unemployment
compensation benefits, and the Court will not consider in the context of an
unemployment compensation appeal whether Employers complied with regulations
of the State Board of Education. Claimant’s arguments, therefore, are without merit.
            Accordingly, we affirm the Board’s order determining that Claimant
was not financially eligible for unemployment compensation benefits.




                                         P. KEVIN BROBSON, Judge




                                         7
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jennifer M. Hemme,                  :
                     Petitioner     :
                                    :
           v.                       :   No. 73 C.D. 2019
                                    :
Unemployment Compensation           :
Board of Review,                    :
                    Respondent      :



                                  ORDER


           AND NOW, this 21st day of August, 2019, the order of the
Unemployment Compensation Board of Review is AFFIRMED.




                                    P. KEVIN BROBSON, Judge
