Schmoll v. Unemployment Compensation Board of Review ( 1993 )

PELLEGRINI, Judge.

Glenn W. Schmoll appeals from the order of the Unemployment Compensation Board of Review denying extended benefits pursuant to the Unemployment Compensation Law (Law).¹ We reverse.²

Glenn W. Schmoll (Claimant) filed an application for unemployment compensation benefits with an effective date of September 30, 1990. Because of that effective date, the base year was the second, third and fourth quarters of 1989, and the first quarter of 1990 was used to determine financial eligibility. The Bureau issued a Notice of Financial Determination (Notice) finding that Claimant earned sufficient funds to receive unemployment compensation benefits. The Notice stated: “Our records show that during your [Claimant’s] base year, wages were reported by the following employer(s): ...” It then went on to list wages from various employers quarter by quarter. It listed base year wages as $16,195, and for the third quarter of 1989, the quarter in question, as $10,963.³ The Notice informed Claimant that “Your weekly benefit is determined to be $280 ...” (Emphasis in original.) While the Notice informed Claimant that he had a right to appeal this determination, he did not do so because he was unaware that the Notice was incorrect and because $280 was the maximum benefit that he could be awarded.⁴

After his regular unemployment compensation benefits had ceased, Claimant applied for extended benefits newly authorized by Congress by the Emergency Unemployment Compensation Act of 1991. 26 U.S.C. § 3304. Claimant later applied for emergency unemployment compensation benefits. To be eligible for benefits, a claimant cannot have a base year less than one and one-half times the highest quarterly wage in the base year. Because the reported wages on the original Notice listed base year wages as $16,195, which was less than one and one-half times the $10,963 in wages Claimant purportedly earned in the third quarter of 1989, the Bureau denied Claimant benefits. Claimant appealed the Bureau’s determination, contending that the wages for the second quarter actually were $10,093 and not $10,963 as listed in the original benefits, making his base year more than one-half times his highest quarterly wage and making him eligible for benefits. Both the Referee and on subsequent appeal, the Unemployment Compensation Board of Review (Board) denied benefits. Benefits were denied because the wage information set forth in the original Notice was never appealed and, consequently, to allege that the wage information was incorrect is an improper collateral attack.

The sole issue presented on appeal is whether the Board erred in disallowing the claim for extended benefits because Claimant failed to appeal wage information contained in the Notice. Our scope of review on appeal where the party with the burden of proof is the only party to present evidence and does not prevail is whether the Board committed an error of law or capriciously disregarded competent evidence. Kirkwood v. Unemployment Compensation Board of Review, 106 Pa.Commonwealth Ct. 92, 525 A.2d 841 (1987).

The Board argues that for Claimant to challenge his wage determination made in the original Notice at the hearing for extended unemployment compensation benefits constitutes an improper collateral attack on the original Notice in violation of Section 509 of the Law. 43 P.S. § 829.⁵ For there to be a collateral attack on an unappealed determination, however, there has to be a determination to appeal in the first place. There is nothing in the Notice to inform Claimant that reported wages is a determination, let alone one that needs to be appealed. The plain language of the Notice only denominates as the determination the amount of compensation awarded, not the reported wage information. Because it was not required to be appealed, he is able to disagree with the correctness of that information in a subsequent application for extended unemployment compensation benefits.

Accordingly, the order of the Board is vacated and the case is remanded to determine whether Claimant is entitled to emergency unemployment compensation benefits.

ORDER

AND NOW, this 15th day of March, 1993, the order of the Unemployment Compensation Board of Review dated March 31,1992, No. B-297590, is vacated and the case is remanded to determine whether Claimant is entitled to emergency unemployment compensation benefits.

Jurisdiction is relinquished.

1 . Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. §§ 811-818.

2 . This opinion was reassigned to the authoring judge on January 11, 1993.

3 . For the year in question, quarter by quarter, Claimant earned:

2nd Quarter 1989 $ 0

3rd Quarter 1989 10,963

4th Quarter 1989 4,072

1st Quarter 1990 1,159

Total Base Year Wages $16,195

4 . In order to qualify for the maximum benefits of $280 a week, an applicant was required to have a high quarter of at least $6,983. See 43 P.S. § 804 or Section 404(a)(1) of the Unemployment Compensation Law effective January 1, 1989. Claimant did not challenge the incorrect third quarter figure of $10,963, because he was at the maximum benefit level, and an appeal would be meaningless in that Congress had not created the Emergency Unemployment Compensation Program.

5 . Section 509, titled Finality of Decisions, provides that:

[A]ny decision made by the department or any referee or the board shall not be subject to collateral attack as to any application claim ... unless appealed from.

Subject to appeal proceedings and judicial review, any right, fact or matter in issue which was directly passed upon or necessarily involved in any decision of a referee or the board or the court and which has become final shall be conclusive for all purposes of this act and shall not be subject to collateral attack as among all affected parties who had notice of such decision----