Lopata v. COM., UNEMP. COMP. BD. OF REV.

493 A.2d 657, 507 Pa. 570
CourtSupreme Court of Pennsylvania
DecidedJune 4, 1985
StatusPublished

This text of 493 A.2d 657 (Lopata v. COM., UNEMP. COMP. BD. OF REV.) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lopata v. COM., UNEMP. COMP. BD. OF REV., 493 A.2d 657, 507 Pa. 570 (Pa. 1985).

Opinion

507 Pa. 570 (1985)
493 A.2d 657

George E. LOPATA, Appellant,
v.
COMMONWEALTH of Pennsylvania, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, Appellee.

Supreme Court of Pennsylvania.

Argued March 6, 1985.
Decided June 4, 1985.

*571 *572 Richard E. Gordon, Pittsburgh, for appellant.

Richard L. Cole, Jr., Chief Counsel, Michael Alsher, Associate Counsel, Charles G. Hasson, Acting Deputy Chief Counsel, Barry M. Hartman, Chief Counsel, Dept. of Labor of Industry, Harrisburg, for appellee.

Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, HUTCHINSON, ZAPPALA and PAPADAKOS, JJ.

OPINION

McDERMOTT, Justice.

George E. Lopata (claimant) was granted discretionary review of the order of the Commonwealth Court affirming the order of the Unemployment Compensation Board of Review (Board) denying him unemployment compensation benefits. In rendering its order, the Board affirmed the unemployment compensation referee's denial of benefits on the basis that claimant lacked the required number of "credit weeks"[1] in his "base year"[2] to be eligible for *573 benefits. Section 4(a) of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended 43 P.S. § 801(a).

Claimant initially applied for benefits after being laid off by his employer, Armco Steel. After a hearing, the referee made the following findings of fact:

1. Claimant filed an application for unemployment benefits with an effective date of May 30, 1982, and thereby established, for purposes of determining his financial eligibility, a base year consisting of the four quarters of calendar year 1981.
2. During his base year claimant worked and had earnings of $50 or more in 17 separate weeks.
3. Claimant also worked and had earnings of more than $50 during the week ending January 3, 1981. This week is not included in the above mentioned 17 weeks.

The single issue before the referee was whether the claimant had accumulated the minimum eighteen (18) credit weeks during his 1981 base year necessary to make him eligible for benefits.[3] It is undisputed that claimant in point of fact worked and had earnings in excess of fifty dollars during the January 1-3, 1981, portion of the week.

Relying on a pronouncement contained in Unemployment Compensation Bulletin No. 871, Supp. 8A, (U.C. Bulletin No. 871), which had been promulgated by the Bureau of Unemployment *574 Compensation, the referee concluded that the week ending January 3, 1981, could not count as a credit week toward claimant's 1981 base year. That bulletin provided in pertinent part that when a calendar week overlapped two calendar quarters, a credit week would be assigned to that calendar week in which at least four days fell, regardless of whether a given claimant had in fact worked during that portion of the week. Since four days of the calendar week ending January 3, 1981, fell during the last quarter of 1980, the referee concluded that the week could not be counted as a credit week toward claimant's 1981 base year. Since claimant was then left with only seventeen (17) credit weeks in his base year, the referee denied benefits. On appeal to the Board, the referee's decision and findings were affirmed.

On appeal a Commonwealth Court majority affirmed the Board, 82 Pa. Commonwealth 126, 474 A.2d 427. That court rejected claimant's argument that U.C. Bulletin No. 871 constituted a regulation[4] which, to be valid, was required to conform with the Commonwealth Documents Law, Act of July 31, 1968, P.L. 769, as amended, 45 P.S. §§ 1101 et seq.[5] The Commonwealth Court majority instead accepted the position urged by the Board, that U.C. Bulletin No. 871 was rather a "statement of policy," and thus not subject to the statutory provisions governing regulations. That court moreover concluded that, as a statement of policy, U.C. Bulletin No. 871 is logically related to the legislative scheme *575 and operates in a fair and nondiscriminatory fashion, and accordingly affirmed the Board's decision.

In a dissenting opinion, Judge Joseph T. Doyle rejected the majority's conclusion that the bulletin provision constituted merely a statement of policy. He reasoned that the pronouncement in question articulated a binding rule of law, and must rather be considered a regulation. Since the pronouncement clearly did not comply with the Commonwealth Documents Law, Judge Doyle reasoned that it must be deemed ineffective and invalid as a regulation, and urged that the document should not have formed the basis of the decisions of the referee and the Board. We agree with this argument and, accordingly, reverse.

This Court has previously considered the distinction between "statements of policy" and "regulations" in its decision in Pennsylvania Human Relations Commission v. Norristown Area School District, (Norristown), 473 Pa. 334, 374 A.2d 671 (1977). We there held that the Pennsylvania Human Relations Commission's desegregation pronouncements constituted statements of policy rather than regulations since the documents in question established only general guidelines for further consideration, rather than promulgating binding rules of law. In that case, we found persuasive the reasoning of the Court of Appeals for the District of Columbia which stated:

A properly adopted substantive rule establishes a standard of conduct which has the force of law . . . The underlying policy embodied in the rule is not generally subject to challenge before the agency.
A general statement of policy, on the other hand, does not establish a "binding norm" . . . A policy statement announces the agency's tentative intentions for the future.

Norristown, 473 Pa. at 350, 374 A.2d at 679, quoting Pacific Gas and Electric Co. v. Federal Power Commission, 506 F.2d 33, 41 (D.C.Cir.1974).

In the instant case it is clear that U.C. Bulletin No. 871 does more than simply offer generalized guidelines, or *576 articulate general statements of policy. Rather, the standard therein articulated is completely and unequivocally determinative of the issue of how to count a credit week which overlaps two quarters. That determination is made by the numerical expedient of assigning the credit week to whichever quarter not less than four days of the week occur, and the determination remains unchanged even if the work was entirely performed, and wages entirely received, in another quarter. The bulletin pronouncement amounts therefore in every sense to a binding rule of law. Since the document fails to comply with the Commonwealth Documents Law, we agree with claimant that it is invalid as a regulation and cannot dictate a denial of benefits.[6]

Having determined that U.C. Bulletin No.

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313 A.2d 156 (Supreme Court of Pennsylvania, 1973)
Pennsylvania Human Relations Commission v. Norristown Area School District
374 A.2d 671 (Supreme Court of Pennsylvania, 1977)
Lopata v. Commonwealth, Unemployment Compensation Board of Review
493 A.2d 657 (Supreme Court of Pennsylvania, 1985)
Wooley v. Commonwealth, Unemployment Compensation Board of Review
454 A.2d 224 (Commonwealth Court of Pennsylvania, 1983)
Pollard v. Commonwealth, Unemployment Compensation Board of Review
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Lopata v. Commonwealth
474 A.2d 427 (Commonwealth Court of Pennsylvania, 1984)

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