Martin v. Unemployment Compensation Board of Review

466 A.2d 107, 502 Pa. 282, 1983 Pa. LEXIS 670

• Court: Supreme Court of Pennsylvania
• Decided: September 28, 1983
• Docket: 17 Western District Appeal Docket 1982
• Status: Published

Opinions

OPINION OF THE COURT

HUTCHINSON, Justice.

This is an appeal from an order of Commonwealth Court affirming the Unemployment Compensation Board of Review’s denial of appellant’s application for unemployment compensation benefits. The sole issue raised is whether the statutory scheme chosen by the legislature to determine the levels of monetary earnings qualifying a worker for unemployment benefits¹ violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution by creating invidious eligibility classifications. The statute applicable to this case required that claimants earning $3,738.00 or more in their highest quarter also earn the maximum of $6,000.00 in fixed qualifying wages in their base year, with a minimum 20% of such base year wages earned outside their highest quarter. On the other hand claimants earning less than $3,738.00 in their highest quarter had to earn 35% to 38% of their wages outside their highest quarter without any higher fixed constant amount.² Since there is a rational basis for this legislative distinction the statute is valid and we affirm the Commonwealth Court’s order.

The facts are not in dispute. Elaine Martin, appellant, had been employed by the National Biscuit Company (Nabisco) for three and one-half years on October 18, 1979 when she became unemployed. Because of sporadic lay-offs, she averaged approximately five months of employment per year during that period. On April 22,1979, appellant filed a claim with the Bureau of Unemployment Compensation. The Bureau found her financially ineligible. The table set forth in section 404(e)(1) of the Act, 43 P.S. § 804(e)(1), provides that a claimant such as appellant, with highest quarter earnings of $2,989.00 during her base year,³ can qualify for benefits of $122.00 per week, provided she earned total base year wages (“qualifying wages”) of $4,800.00. Because appellant’s “qualifying wages” during her base year, $4,433.00, were less than the amount required, the Bureau determined her ineligible for benefits.⁴

Following a hearing held on June 7,1979, a referee upheld the Bureau’s determination. Appellant sought further review before the Unemployment Compensation Board of Review (Board), appellee. On August 9, 1979 the Board affirmed the finding of financial ineligibility.

Appellant challenged the constitutionality of section 404(e)(1) of the Act, 43 P.S. § 804(e)(1), in her appeal to Commonwealth Court. By opinion and order of January 6, 1982, a panel of the Commonwealth Court affirmed the denial of benefits. 63 Pa. Commonwealth Ct. 629, 439 A.2d 207 (1982). Thereafter, we granted appellant’s petition for allowance of appeal. The parties initially argued the appeal before this Court on September 23,1982, at which the Board was represented by the Attorney General’s office. On December 15, 1982, this Court ordered reargument with leave to file supplemental briefs and we invited interested parties and organizations to submit briefs as a mid curiae. The case was reargued on March 7,1983 with only the original parties participating.

I.

The Bureau determines financial eligibility for unemployment compensation benefits by applying Section 404(e)(1), 43 P.S. § 804(e)(1), Table Specified for the Determination of Rate and Amount of Benefits (hereinafter Table) a portion of which is printed as follows:

Part A Highest Quarterly Wage Part B Rate of Compensation Part C Qualifying Wages Part D ⁵ Amount of Compensation

$2,888-2,912 $118 $4,640 $3,540

2,913-2,937 119 4,680 3,570

2,938-2,962 120 4,720 3,600

2,963-2,987 121 4,760 3,630

2,988-3,012 122 4,800 3,660

Part A (Cont’d) Part B (Cont’d) Part C (Cont’d) Part D (Cont’d) Highest Quarterly Rate of Qualifying Amount of Wage Compensation Wages Compensation

*******

$ 3,713-3,737 151 l 5,960

3,738 or more 152 6,000

* 4,560

To determine financial eligibility under this Table, a claimant first determines her “highest quarterly wages” (Part A) earned during the base year which, in turn, determines the corresponding rate and total amount of compensation provided in Parts B and D of the Table. However, in order to be eligible for those benefits, the claimant must have earned, in her base year, the amount set forth in Part C, “Qualifying Wages”.⁶ The “qualifying wage” column when applied in conjunction with the highest quarterly wage column is designed to ensure that a certain percentage of a claimant’s wages will have been earned outside of her highest quarter, so as to demonstrate that a claimant has been genuinely attached to the labor force. Throughout the Table, this percentage (a percentage obtained by dividing the amount earned outside the high quarter by the qualifying wages earned during the base year) is in the 35%-38% range, i.e. a claimant had to have earned from 359^38% of her total base year wages in a quarter or quarters other than her high quarter.⁷

However, a claimant earning the highest quarterly wage specified on the Table, $3,738.00,⁸ or more, is referred to section 401(a), 43 P.S. § 801(a), which provides, in relevant portion:

Compensation shall be payable to any employee who is or becomes unemployed, and who—(a) Has, within his base year, been paid wages for employment as required by section 404(c) of this act: Provided, however, that not less than twenty per centum (20%) of the employe’s total base year wages have been paid in one or more quarters, other than the highest quarter in such employe’s base year.

The crux of appellant’s argument is that Part C of the Table operates to require claimants making $3,738.00 or less in their high quarters to have earned 35%^-38% of their qualifying wages in another quarter or quarters, while the Table and the so-called “20% minimum rule” of section 401(a) allow those claimants earning more than $3,738.00 in their high quarters to qualify for benefits if as little as 20% of their qualifying wages are earned outside of the high quarter.⁹ Appellant argues these two methods of computing eligibility create classifications impermissible under the Equal Protection Clause of the Fourteenth Amendment.

Appellant earned’ $2,989.00 in her highest quarter and $1,444.00 outside her highest quarter. Her qualifying wages were $4,433.00. Based on her hourly rate of $7.00 per hour she worked 427 out of a possible 520 hours in her highest quarter and 206 hours outside her highest quarter.¹⁰ Appellant earned 33% of her qualifying wages outside her highest quarter. By application of Part C of the Rate Table and the “step down” provision of Section 404(a)(3) she failed to qualify for benefits.

She notes that a higher paid employee earning $9.50 per hour but working identical hours would have exceeded the $3,738.00 maximum in Part C and would qualify for benefits with only 31% of her earnings outside the highest quarter. Appellant argues that the only purpose served by permitting persons earning over $3,738.00 in their highest quarter to qualify for compensation benefits with a lower percentage of earnings outside the highest quarter than those earning under $3,738.00 in their highest quarter has no legitimate interest and the sole effect of discriminating against workers with lower hourly wages. However, careful examination of the statutory scheme in question reveals that it was designed to and does serve a legitimate state end even though it does result in some inequality.

II.

In determining whether this statute violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution we must first determine the appropriate standard of review. The United States Supreme Court has consistently applied only minimal scrutiny to statutory classifications employed in the regulation of economic activity or in the distribution of economic benefits so long as those classifications do not discriminate against “suspect classes”. If the statutory classification bears some rational relationship to a legitimate state end, it is within the legislative power. McGinnis v. Royster, 410 U.S. 263, 93 S.Ct. 1055, 35 L.Ed.2d 282 (1973). See also Commonwealth of Pennsylvania, Department of Public Welfare v. Molyneaux, 498 Pa. 192, 445 A.2d 730 (1982). Moreover, such a classification does not offend the Equal Protection Clause merely because it “is not made with mathematical nicety or because in practice it results in some inequality.” Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491 (1970).

“It is by practical experience and not by theoretical inconsistencies that the question of equal protection is to be decided” and it is “no requirement of equal protection that all evils of the same genus be eradicated.” Railway Express Agency v. New York, 336 U.S. 106, 69 S.Ct. 463, 93 L.Ed. 533 (1949). The Supreme Court has concluded that “the problems of government are practical ones and may justify, if they do not require, rough accommodations—illogical, it may be, and unscientific.” Dandridge v. Williams, 397 U.S. at 485, 90 S.Ct. at 1161 (quoting Metropolis Theatre Co. v. City of Chicago, 228 U.S. 61, 69-70, 33 S.Ct. 441, 443, 57 L.Ed. 730 [1913]; United States v. Carolene Products Co., 304 U.S. 144, 58 S.Ct. 778, 82 L.Ed. 1234 [1938]). See generally “Developments in the Law of Equal Protection,” 82 Harv.L.Rev. 1065 (1969).¹¹ Moreover, the legislature need not justify its logical presumptions with statistical evidence. Hughes v. Alexandria Scrap Corp., 426 U.S. 794, 812, 96 S.Ct. 2488, 2499, 49 L.Ed.2d 220 (1976). See also Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976).

In determining whether a classification is rational a court is free to hypothesize the reasons the legislature might have had for its classification. See Williamson v. Lee Optical, 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955). The courts do not require record evidence to justify the classification nor do they require the legislative history to show that the legislature had considered the particular rationale that satisfies the court. See Hughes v. Alexandria Scrap Corp., 426 U.S. 794, 812, 96 S.Ct. 2488, 2499, 49 L.Ed.2d 220 (1976). McGowan v. Maryland, 366 U.S. 420, 425-426, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 (1961). Indeed, the legislative action always carries a strong presumption of constitutional validity. National Woodpreservers v. DER, 489 Pa. 221, 414 A.2d 37 (1980) (Opinion by Mr. Justice, now Chief Justice, Roberts) (citing United States v. Vuitch, 402 U.S. 62, 91 S.Ct. 1294, 28 L.Ed.2d 601 [1971]).

The consistency with which the United States Supreme Court has applied these principles to state social and economic policies is illustrated in Dandridge where the Court upheld a state law placing an upper limit on the number of children for which any family could receive subsistence payments. Justice Stewart, writing for the majority, concluded that although the classification “involved the most basic needs of impoverished human beings ... we can find ho basis for applying a different constitutional standard.” Id. 397 U.S. at 485, 90 S.Ct. at 1161. See also Jefferson v. Hackney, 406 U.S. 535, 92 S.Ct. 1724, 32 L.Ed.2d 285 (1972).

Again, in City of New Orleans v. Dukes, 427 U.S. 297, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976) the United States Supreme Court upheld a law prohibiting pushcart vendors from selling their goods in the French Quarter. The law, in its effect, exempted from the ban only two pushcart vendors who qualified under the ordinance’s grandfather clause. In upholding the City ordinance the United States Supreme Court explicitly overruled Morey v. Dowd, 354 U.S. 457, 77 , 1 L.Ed.2d 1485 (1957).¹² The Dukes Court summarized the equal protection standard as follows:

When local economic regulation is challenged solely as violating the Equal Protection Clause, this Court consistently defers to legislative determinations as to the desirability of particular statutory discriminations. See, e.g., Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356 [93 S.Ct. 1001, 35 L.Ed.2d 351] (1973). Unless a classification trammels fundamental personal rights or is drawn upon inherently suspect distinctions such as race, religion, or alienage, our decisions presume the constitutionality of the statutory discriminations and require only that the classification challenged be rationally related to a legitimate state interest. States are accorded wide latitude in the regulation of their local economies under their police powers, and rational distinctions may be made with substantially less than mathematical exactitude. Legislatures may implement their program step by step, Katzenbach v. Morgan, 384 U.S. 641 [86 S.Ct. 1717, 16 L.Ed.2d 828] (1966), in such economic areas, adopting regulations that only partially ameliorate a perceived evil and deferring complete elimination of the evil to future regulations. See, e.g., Williamson v. Lee Optical Co., 348 U.S. 483, 488-489 [75 S.Ct. 461, 464-465, 99 L.Ed. 563] (1955). In short, the judiciary may not sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines, see, e.g., DayBrite Lighting, Inc. v. Missouri, 342 U.S. 421, 423 [72 S.Ct. 405, 407, 96 L.Ed. 469] (1952); in the local economic sphere, it is only the invidious discrimination, the wholly arbitrary act, which cannot stand consistently with the Fourteenth Amendment. See, e.g., Ferguson v. Skrupa, 372 U.S. 726, 732 [83 S.Ct. 1028, 1032, 10 L.Ed.2d 93] (1963).

427 U.S. at 303, 96 S.Ct. at 2516-2517. See also Nowak, Constitutional Law (1978). The United States Supreme Court has applied the same standard in reviewing constitutional challenges to a state’s eligibility requirement for unemployment compensation. See Ohio Bureau of Employment Security v. Hodory, 431 U.S. 471, 97 S.Ct. 1898, 52 L.Ed.2d 513 (1977). See also Idaho Department of Employment v. Smith, 434 U.S. 100, 98 S.Ct. 327, 54 L.Ed.2d 324 (1977) (An Idaho statute granting unemployment benefits to night students, but denying benefits to otherwise eligible day students, does not deny equal protection).

Recently in Hodel v. Indiana, 452 U.S. 314, 101 S.Ct. 2376, 69 L.Ed.2d 40 (1981) (an equal protection challenge to the Surface Mining and Reclamation Act of 1977) a majority of that Court reiterated its support of this standard of scrutiny for challenges to social and economic legislation.

Social and economic legislation like the Surface Mining Act that does not employ suspect classifications or impinge on fundamental rights must be upheld against equal protection attack when the legislative means are rationally related to a legitimate governmental purpose. Schweiker v. Wilson, [450] U.S. [221], 101 S.Ct. 1074, 67 L.Ed.2d 186 (1981); U.S. Railroad Retirement Board v. Fritz, [449] U.S. [166], 101 S.Ct. 453, 66 L.Ed.2d 368 (1980). Moreover, such legislation carries with it a presumption of rationality that can only be overcome by a clear showing of arbitrariness and irrationality. Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. [59] at 83, 98 S.Ct. [2620], at 2635 [57 L.Ed.2d 595 (1978)]; Usery v. Turner Elkhorn Mining Co., 428 U.S. [1], at 15, 96 S.Ct. [2882], at 2892 [49 L.Ed.2d 752 (1976) ]. As the Court explained in Vance v. Bradley, 440 U.S. 93, 97, 99 S.Ct. 939, 943, 59 L.Ed.2d 171 (1979), social and economic legislation is valid unless “the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that [a court] can only conclude that the legislature’s actions were irrational.” This is a heavy burden, and appellees have not carried it.

Id. at 331-332, 101 S.Ct. at 2386-87. See also United States Railroad Retirement Board v. Fritz, 449 U.S. 166, 101 S.Ct. 453, 66 L.Ed.2d 368 (1981); Schweiker v. Wilson, 450 U.S. 221, 101 S.Ct. 1074, 67 L.Ed.2d 186 (1981).

While it has been asserted that the foregoing standard represents too narrow a view of the judiciary’s responsibility for assessing the validity of legislative action,¹³ the standard is a necessary one under the doctrine of separation of powers.

Appellant originally agreed the receipt of unemployment compensation benefits is not a fundamental right nor are the classifications created by the act “suspect” and she conceded that the statute is constitutional if the classifications are rationally related to a legitimate government purpose. See Appellant’s Brief at 13-14 (July 14, 1982). However, in a Supplemental Brief filed prior to reargument appellant claims for the first time that this Court must follow Medora v. Colautti, 602 F.2d 1149 (3d Cir.1979), which applied a “heightened” standard of scrutiny to a Pennsylvania Department of Welfare regulation requiring blind, aged or disabled persons to qualify for social security disability before becoming eligible for general assistance from the Commonwealth. But see Price v. Cohen, 715 F.2d 87 (3d Cir.1983). In so holding, the Court of Appeals applied a more demanding middle level of review which the United States Supreme Court has applied when statutory classifications involve sensitive but not suspect classes. See Califano v. Westcott, 443 U.S. 76, 96 S.Ct. 2655, 61 L.Ed.2d 382 (1979) (sex); Lalli v. Lalli, 439 U.S. 259, 99 S.Ct. 518, 58 L.Ed.2d 503 (1978) (legitimacy); Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976) (sex).

Even if we accept appellant’s argument that Pennsylvania’s unemployment compensation law creates a classification based on “wealth” such a classification does not trigger a heightened standard of scrutiny. See San Antonio School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973). The Court of Appeals in Medora recognized that a classification based on wealth alone would not justify closer scrutiny of the regulation. Rather it based its determination on the fact that the classifications were based on appellee’s status as blind, aged or disabled and that the right to “welfare” is “important.” c.f. United States Department of Agriculture v. Moreno, 413 U.S. 528, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973); United States Department of Agriculture v. Murry, 413 U.S. 508, 93 S.Ct. 2832, 37 L.Ed.2d 767 (1973). But c.f. Jefferson v. Hackney, supra.

Without questioning the validity of the Medora decision on its facts, both the classification and the nature of the right involved in that case are not analogous to appellant’s situation. In reviewing the Federal Constitutional challenge to this Commonwealth’s unemployment compensation law, we must apply the less stringent “rational relationship” test articulated by the United States Supreme Court in cases involving constitutional challenges to unemployment compensation laws which include non-suspect or sensitive classifications, as here. Ohio Bureau of Employment Security v. Hodory, supra; Idaho Department of Employment v. Smith, supra. See also Schweiker v. Wilson, supra; United States Railroad Retirement Board v. Fritz, supra.

As the United States Supreme Court stated in Daniel v. Family Security Life Ins. Co., 336 U.S. 220, 224, 69 S.Ct. 550, 552, 93 L.Ed. 632 (1949):

We are asked to agree with respondents and call the statute arbitrary and unreasonable.

Looking through the form of this plea to its essential basis, we cannot fail to recognize it as an argument for invalidity because this Court disagrees with the desirability of the legislation. We rehearse the obvious when we say that our function is thus misconceived. We are not equipped to decide desirability; and a court cannot eliminate measures which do not happen to suit its tastes if it seeks to maintain a democratic system. The forum for the correction for ill-considered legislation is a responsive legislature.

Thus, in reviewing appellant’s Federal Constitutional challenges based solely on Equal Protection grounds, we are constrained by these firmly established principles.

III.

We turn now to an examination of the general purpose behind the requirement that a claimant earn a percentage of base year earnings outside her highest quarter as a criterion for eligibility. This has traditionally been a statistical surrogate for direct evidence of time worked. Evidence of time worked in a recent period is a legitimate eligibility requirement for unemployment compensation:

First, it serves to exclude new entrants or reentrants to the work force, who suffer no loss. Second, it is appropriate in an insurance program that there be a period of time in which workers earn their rights and some contributions are paid on their behalf (unlike workers’ compensation, where persons are covered from the first day of work). Finally, .... recent work history is part of a series of tests, along with the reasons for termination of the last job and evidence of continuing availability, that establish the work-oriented motives of the applicant. In this sense, “the monetary determination of eligibility,” as bureaucrats call the qualifying requirement, is the first screen of a work test.

C. Munts, Previous Work Requirements and the Duration of Benefits: Unemployment Compensation Studies and Research, at 3 (1980).

Various methods have been adopted in the numerous jurisdictions which require claimants to earn a percentage of qualifying wages outside their highest quarter as an alternative measure for actual time worked because of the difficulty in obtaining accurate statistics for the latter. All such methods are only rough measures of time actually worked, since the amount of a claimant’s earnings in any period is a function of both time and rate of compensation. They have, nevertheless, survived constitutional challenge. Ertman v. Fusari, 442 F.Supp. 1147 (D.C.Conn.1977). Thus, the rational relationship between the requirement that a claimant earn a percentage of income outside the highest quarter to a legitimate government interest is not disputed.

IV.

We have already explained the mechanics of Pennsylvania’s statutory method for establishing attachment to the labor force. Without repeating all of that exigesis here, suffice it to say that the variation of the “multiple of weekly benefits” method used in the applicable Pennsylvania statute to calculate qualifying wages under Section 404 of the Unemployment Compensation Law required claimants receiving $3,738.00¹⁴ or less as wages in their high quarter to earn 35-38% of qualifying base year wages outside that highest quarter. Claimants earning $3,738.00 or more in their highest quarter were required to eárn qualifying wages of $6,000.00 or a minimum of 20% of their qualifying base year wages outside their highest quarter. The necessary rational basis for this legislative decision to require a lower percentage of earnings outside their highest quarter for higher paid claimants appears when we examine the rule in the context of its legislative history.

Prior to the 1964 Amendments to the Unemployment Compensation Law, 1968, Special Session March 24, P.L.No. 1, Section 401(a) did not include the proviso that “not less than twenty percentum (20%) of the employe’s total base year wages have been paid in one or more quarters, other than the highest quarter in such employe’s base year.” Prior to 1964 the 35%-38% requirement in the Section 404 table operated uniformly at all eligible wage levels, as in the Connecticut statute upheld against an equal protection attack in Ertman. Once a claimant reached the maximum in wages on the table for his highest quarter wage the base year qualifying wage remained fixed. Consequently, the proportion of wages earned outside the highest quarter to qualifying wages earned in the base year decreased as the highest quarterly wage increased. For example, the Rate Table provided in the 1959 amendments to the Act set a maximum qualifying wage of $1,825.00 against a corresponding highest quarter wage of $988.00 or more. Thus, an employee earning $1,825.00 in his highest quarter would have qualified for compensation without earning wages in any other quarter.

Essentially appellant maintains that the legislature did not go far enough when it imposed only a 20% requirement on claimants who earn more in their high quarter than the maximum provided in Part A of the 404(e) Rate Table. Her argument suggests the legislature’s policy of encouraging greater attachment to the labor force by imposing a 20% requirement has made the statute unconstitutional by failing to totally eliminate any percentage differential between seasonal and full-time employees. Thus, she says the legislature should have made that percentage uniform regardless of the amount of income earned in one’s highest quarter.¹⁵ Let us further examine this argument.

The legislature could well have felt this decreasing percentage of high quarter to qualifying wages reduced the statistical correlation between the earnings device chosen to measure attachment in a particular case. That it did recognize this very problem and introduced the 20% test for high earners to partially meet it, is shown by the 1964 House debate on the subject as set forth below.

In 1964 the legislature was called upon to deal with an unemployment compensation fund which had a deficit of $41,000,000.00. See Remarks of Representative K.B. Lee, Legislative Journal-House, Special Session 1964, at 64 (March 20, 1964). In an effort to tighten the criteria for eligibility by making it more difficult for seasonal workers to qualify for compensation, the General Assembly added the 20% minimum proviso, for the first time requiring workers earning at or above the maximum in their highest quarter to have earnings in their base year outside that highest quarter. These seasonal employees, who worked intensively for short periods of the year, were generally migrants not then considered to have a bona fide attachment to the Commonwealth’s labor force.

In establishing the 20% minimum requirement for workers earning more than the maximum highest quarterly wages on the table, the legislature recognized that it was making it more difficult for all seasonal employees, such as cannery workers for example, and others permanently resident in this state to qualify for compensation. Several legislators opposed the 20% proviso on that very ground. See Remarks of Representative Bailey, Legislative Journal-House, supra at 52 (March 19, 1964); Remarks of Representative Fine-man, Id. at 78 (March 20, 1964).¹⁶ Thus, the introduction of the 20% requirement was not intended to benefit higher paid employees. Instead the purpose of the amendment adding an explicit fixed percentage requirement to the statute for those earning maximum qualifying wages was improvement of the correlation between multiple of weekly earnings as a statistical test for attachment to the work force for claimants whose seasonal work is concentrated in their highest quarter. Its effect is to require such claimants to work a greater number of weeks in the base year in order to qualify for compensation. However, the use of the lower 20% requirement for such workers, instead of the table’s 35% to 38% requirement for workers earning less than the highest quarter maximum is in fact advantageous to the seasonal worker and ameliorates anomolous denials of benefits to claimants who are in fact fully attached to the work force but in seasonal employment which makes them powerless to correlate their work weeks with the base year calendar.

V.

When the formula for determining the requisite earnings outside the. highest quarter is a function of a fixed percentage of wages in the base year, it becomes increasingly difficult for claimants whose work is concentrated in one quarter to maintain any fixed ratio required to qualify for compensation. Under such a formula, seasonal workers are required to work more weeks outside their high quarter than those in industries without large seasonal fluctuations. In short, the assumption of proportionality between wages earned in the high quarter and the base year is imperfectly correlated to work force attachment and that correlation is particularly poor for workers in a seasonal industry. The following example from Munts, supra, which describes the multiple of high quarter earnings method, illustrates that point:

This is one of the substitute measures for time worked that was selected for administrative simplicity. It is an inaccurate proxy, especially for those who work a small part of the base year. For example, a requirement of earnings at IV4 times high-quarter earnings would qualify an individual with 8 weeks in the high quarter and 2 weeks outside for a total of 10, but an individual with 13 weeks in the high quarter and 3 weeks outside for a total of 16 would not qualify. Both would have earnings in 2 quarters, but the person with fewer weeks would qualify and the one with a longer work record would not.

Id. at 4.

The inequality created by requiring a claimant to earn a fixed percentage of base year wages outside the high quarter regardless of the amount earned in the highest quarter is apparent when we control for rate of compensation. Highest quarter earnings are a function of two variables, rate of compensation and amount of time worked. Prior to the 1980 Amendments to the Act,¹⁷ which have no application to this case, assume a claimant has a fixed wage rate of $500.00 a week and, as appellant would have us hold, the ratio of wages earned outside the highest quarter to base year wages is fixed at 20% for all claimants. Table I (post at 117) demonstrates, as the number of weeks worked inside the highest quarter increases, the corresponding number of weeks worked outside the highest quarter must also increase in order to maintain a 20% ratio.

TABLE I

Weeks Worked Highest Quarter ¹⁸ 4' 5 6 7 8 9 10 11 12 13

Highest Quarter Earnings $2,000 $2,500 $3,000 $3,500 $4,000 $4,500 $5,000 $5,500 $6,000 $6,500

Weeks Required Outside Highest Quarter 1 2 2 2 2 3 3 3 3 4

Earnings Required Outside Highest Quarter $ 500 $1,000 $1,000 $1,000 $1,000 $1,500 $1,500 $1,500 $1,500 $2,000

Total Weeks Worked 5 7 8 9 10 12 13 14 15 17

Total Base Year Earnings $2,500 $3,500 $4,000 $4,500 $5,000 $6,000 $6,500 $7,000 $7,500 $8,000

By permitting claimants earning more than the maximum dollar amount in Part A of the Rate Table provided in 404(e) of the Unemployment Compensation Law in their highest quarter to qualify for compensation with a lower percentage of their base year wages earned outside the highest quarter than those claimants earning less than the maximum, the legislature reduced the likelihood of an anomolous denial of benefits to claimants who in effect worked too many weeks in their highest quarter. Thus, the 1964 amendment served its intended purpose of improving the correlation between the statistical test and the reality of work force attachment, without the devastating impact on seasonal workers that imposition of a uniform 35V-38% of earnings outside the highest quarter would have entailed. Conversely, it is clear the legislature in 1964 intended to tighten eligibility, not loosen it, as the judicial imposition of a uniform 20% requirement for all workers would entail.

By way of illustration, let us assume now that in 1964, when the legislature first enacted the 20% rule, it had instead extended Part A (highest quarterly wage) and Part C (qualifying wages) of the 404(e) Table so that claimants were restricted to $152.00 a week compensation under Part B of the Table, and all claimants were required to earn 35-38% of qualifying wages outside their highest quarter. Claimant A (hypothetical) and claimant B (hypothetical) each applied for benefits on April 22, 1979. Claimant A earned $300.00 a week and worked for ten weeks during her highest quarter for a total of $3,000.00. She also worked for six weeks during the rest of her base year earning a total of $1,800.00. Consequently, she had earned qualifying wages of $4,800.00. Since she has earned 37.5% of her wages outside her highest quarter under Part C of the Table, she would be eligible for benefits.

Claimant B earned $300.00 a week and worked thirteen weeks in her highest quarter for a total of $3,900.00. She also worked six weeks during the rest of her base year earning an additional $1,800.00. Because Claimant B did not earn 35-38% of her income outside her highest quarter, she would be ineligible for benefits. However, under the 20% rule, Claimant B would qualify for compensation.

Moreover, lest there remain any lingering suspicion that the 20% compensation requirement was deliberately designed to discriminate against workers earning low rates of compensation, consider the following hypotheticals. Claimant C worked for six weeks in her highest quarter at a rate of $500.00 per week for a total of $3,000.00. She also worked for four weeks outside her highest quarter for a total of $2,000.00. Claimant C thus earned 40% of her base year earnings outside her highest quarter and she would qualify under Table C. On the other hand, Claimant D worked for 13 weeks in her highest quarter at a rate of $400.00 per week for a total of $5,200.00. She also worked 4 weeks outside her highest quarter for a total of $1,600.00. Claimant D had only earned 23.5% of her earnings outside of her highest quarter and she would- fail to qualify. See also Remarks of Representative Fineman, supra, at p. 78 (including other illustrations).¹⁹

In each of the above hypothetical, the claimant with fewer weeks worked would qualify and the one with a longer work record would not. By requiring a lower percentage of earnings outside the highest quarter for persons earning over $3,738.00 per year, the 20% minimum requirement reduced the likelihood that claimants with more weeks worked in both their high and outside quarters would be disqualified for compensation.

The appellant’s hypothetical, supra at 110 - 111, as well as those included in Mr. Justice Larsen’s dissent do show that the statutory scheme results in some unequal treatment between similarly situated claimants. It illustrates an imperfection in our Unemployment Compensation Law’s correlation of the proportionality of highest quarter and base year wages to work force attachment. However, as previously illustrated, the flat percentage scheme sought by appellant may punish a claimant with a low rate of compensation who works more weeks in his highest quarter than does a higher paid employee. That method of solving a perceived injustice merely creates another equally onerous classification. In addition, it is totally contrary to the overall intent of the 1964 legislature to tighten eligibility for high earners by requiring better statistical evidence of attachment to the work force.²⁰ In either case persons seemingly qualified when compared to selected others are disqualified. Such inequities in the distribution of benefits are an unfortunate concomitant of complex economic-social welfare legislation which must ultimately reflect a balance between legislative efforts to eliminate an evil, e.g., the debilitating effects of unemployment, administrative realities and the problem of allocating scarce financial resources in a complex society. The resolution of such conflicting interests is peculiarly adapted to the legislative process.

In Ohio Bureau of Employment Services v. Hodory, supra, the United States Supreme Court considered a constitutional challenge to a provision of the Ohio Unemployment Compensation Law which excluded from eligibility persons unemployed due to a labor dispute other than a strike. The appellant, an employee at United States Steel in Youngstown, Ohio, had been furloughed through no fault of his own because of a strike by United Mine Workers which cut off the fuel supply at the Youngstown Plant. In upholding the validity of the statute the Court concluded that while the system provides only “rough justice”, it is not irrational because it deprived an “innocent” worker of compensation. Here, as in Hodory a legislative scheme designed to achieve a legitimate public purpose should not be found unconstitutional because it falls short of perfect justice.

The legislature has apparently recognized that its requirement of a fixed percentage of earnings outside the highest quarter is an inaccurate proxy for establishing time worked outside the highest quarter and, a fortiori, job attachment. In 1980 it amended section 404(c) of the Unemployment Compensation Law, 43 P.S. § 804(c), for the first time requiring that all claimants work a minimum number of 18 weeks in their base year regardless of the amount of qualifying wages earned.²¹ Consequently, it is now impossible for an individual with a fixed rate of pay to qualify for compensation with any less than 27.8% of earnings outside the highest quarter.²² We will not rewrite this complex statute simply because it did not reflect this statutory refinement at the time appellant filed her claim.

Order of the Commonwealth Court affirmed.

ZAPPALA, J., concurs in the result. LARSEN, J., files a dissenting opinion in which FLAHERTY, J., joins.

1 . Sections 401 and 404 of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. §§ 801, 804.

2 . The maximum highest quarterly wage currently specified in the Table set forth in Section 404(e)(1) of the Act is $4,688.00 or more, and the corresponding qualifying wage is $7,520.00.

3 . “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” which begins the day on which a valid application is filed. Section 4(a) and (b), 43 P.S. § 753(a) and (b). Appellant’s base year was January 1, 1978-December 31, 1978.

4 . The “step-down” provision of section 404(a)(3), 43 P.S. § 804(a)(3) allows a claimant who has insufficient qualifying wages at the applicable weekly benefit rate to “step-down” four lower rates and, if the claimant has earned the amount of qualifying wages designated for the lowest of those four rates, to become eligible at that lowest rate. Appellant’s qualifying wages at the fourth lower weekly benefit rate of $118.00 would have been $4,640.00. The 1980 amendments to the Act reduced the “step-down” provision to the next three weekly benefit rates. Act of July 10, 1980, P.L. 521, No. 108, § 15.

5 . The 1980 amendments to the Act split the “Amount of Compensation” column into two columns. Under the present system, a claimant who works 18 to 23 “credit weeks” during her base year is entitled to the amount of compensation specified in Part D while a claimant working 24 “credit weeks” or more is entitled to the compensation set.forth in Part E. 43 P.S. § 804(c). Present Part E corresponds to the Part D in effect at the time of the appeal.

(This figure subject to section 401[a], 43 P.S. § 801[a])

6 . As discussed in note 4, supra, a claimant may also use a “step-down” method to qualify for compensation at a slightly lower rate. 43 P.S. § 804(a)(3). The step-down procedure did not help appellant.

7 . For persons earning $3,738.00 or less in their highest quarter, the amount of corresponding qualifying wages on the table is calculated by the “multiple of 40-minus-$80” method. Under this method the rate of compensation is multiplied by 40 and $80.00 is subtracted from that amount. For example, a claimant who is eligible for benefits of $50.00 per week must have earned qualifying wages of $1,920.00 in her base year. ($50.00 X 40 = $2,000.00 - $80.00 = $1,920.00). The result of this variation of the multiple of weekly benefits method when coupled with the step-down provisions described in note 4, supra, is that all claimants earning less than $3,738.00 in their highest quarter must earn 35% to 38% of their total base year wages outside their highest quarter.

8 . The maximum highest quarterly wage currently specified in the Table is $4,688.00 or more, and the corresponding qualifying wage is $7,520.00. See 34 Pa.Code § 65.111. The maximum is automatically adjusted each year pursuant to section 404(e)(2), 43 P.S. § 804(e)(2), and regulations of the Board, 34 Pa.Code § 65.112.

9 . The appellant incorrectly implies that once a claimant earns $3,738.00 in her highest quarter the percentage of earnings outside the highest quarter drops in one discontinuous jump from 35-38% to 20%. In fact there is no precipitious drop from 37% to 20% once a claimant has earned over $3,738.00 in her highest quarter. The assumption of discontinuity ignores the other requirement that she must still earn at least $6,000.00 in base year qualifying wages. Consequently, a claimant earning $4,000.00 in her highest quarter would still have to earn 33% of her income outside her highest quarter and a claimant earning $4,500.00 in her highest quarter would be required to earn 25% of her income outside her highest quarter in order to earn qualifying wages of $6,000.00. Only when a claimant earns $4,800.00 or more in her highest quarter does the minimum 20% requirement control. Thus, the 20% requirement does not introduce a discontinuity into the graph.

10 . Based on a maximum of 13 weeks in any quarter with forty working hours in each week.

11 . Given this standard it is not surprising that for twenty years the United States Supreme Court did not find a state statute in the economic field involving non-suspect classes unconstitutional on equal protection grounds until it struck down an Illinois statute precluding the sale of money orders unless the seller engaged exclusively in that business. See Morey v. Dowd, 354 U.S. 457, 77 S.Ct. 1344, 1 L.Ed.2d 1485 (1957), ovrld., City of New Orleans v. Dukes, 427 U.S. 297, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976).

12 . Supra at 111, note 11.

13 . See Gunther, “In Search of Evolving Doctrine on a Changing Court, A Model for a Newer Equal Protection,” 86 Harv.L.Rev. 1 (1972).

14 . $4,688.00 in 1982. Supra at 108-109.

15 . The legislature had at least two means of dealing with the remaining inequity: by reducing the requirement to a uniform 20% or increasing it to a uniform 35%.

16 . Representative Bailey specifically raised the impact of the 20% requirement on women who were heavily employed in seasonal industries.

17 . Act of July 10, 1980, P.L. 521, No. 108, 43 P.S. § 804.

18 . Based on a forty hour work week.

19 . If the percentage of wages earned outside the highest quarter to base year wages is set at 20% or any other fixed percentage, similar inequalities result. For example, Claimant A who works for five weeks at $500.00 per week in his highest quarter and two weeks outside his highest quarter at $500.00 per week would qualify at 20%. Claimant B who works' for nine weeks in his highest quarter at $200.00 per week and two weeks outside his highest quarter at $200.00 per week would not qualify at 20%.

20 . See Califano v. Wescott, 443 U.S. 76, 89, 99 S.Ct. 2655, 2663, 61 L.Ed.2d 382 (1979).

21 . Supra, note 5, at 287.

22 . Because there is a maximum of thirteen weeks in a quarter, in order to work eighteen weeks in the base year a claimant who works the full thirteen weeks in his highest quarter must work a minimum of five weeks outside that quarter. Five is 27.8% of eighteen. Each additional week which a claimant works would increase the ratio of weeks worked outside the highest quarter to weeks worked in the base year. Thus, if he works six weeks outside his highest quarter, the ratio is 33.3%.