                 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…)
              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. . . .”




                                              2
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.)



                                                3
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.




                                            4
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 thirteen-
week 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 . . . .”5 43 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).



                                                  5
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 off-
season, 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



                                           6
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




                                            7
               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 1st day of November, 2016, the order of the
Unemployment Compensation Board of Review, dated March 29, 2016, is hereby
affirmed.



                                         ________________________________
                                         PATRICIA A. McCULLOUGH, Judge
