Kelly v. Unemployment Compensation Board of Review

CONCURRING AND DISSENTING OPINION BY

Judge FRIEDMAN.

I concur with that portion of the majority’s opinion reversing the Unemployment Compensation Board of Review’s (Board) imposition of a fault overpayment on Michael W. Kelly (Claimant) pursuant to seetion 804(a) of the Unemployment Compensation Law (Law). 1 However, I disagree with the majority’s determination that Claimant was ineligible for unemployment compensation benefits under the Law because he was not “unemployed” as that term is statutorily defined. To the contrary, I agree with Claimant’s contention that he remained “unemployed” throughout his entire benefits period and, therefore, he received no' benefits to which he was not entitled.

As the majority recounts, Claimant lost his full-time sales manager position in November 2001, and the Office of Employment Security (OES) determined that he was eligible for benefits. In January 2002, Claimant began working full-time in real estate sales, with pay on a commission only basis. However, Claimant continued to file for and receive unemployment compensation benefits, concluding that he remained eligible for benefits because he had yet to make a sale or receive a commission. 2

Subsequently, OES determined that Claimant became ineligible for unemployment compensation benefits once he assumed this full-time sales position. OES reasoned that, in accordance with sections 401 and 4(u) of the Law, 43 P.S. §§ 801 and 753(u), a claimant must be employed less than his or her full-time hours to be *475 considered “unemployed” and, thus, eligible for benefits. Because Claimant was working full-time as of January 1, 2002, albeit on a commission only basis, OES concluded that Claimant had not been enti-tied to receive benefits after that date,

Claimant appealed and the referee affirmed; like the OES, the referee determined that, because Claimant was involved in real estate sales on a full-time basis, he was no longer “unemployed” within the meaning of sections 401 and 4(u) of the Law. On further appeal, the Board also affirmed. 3 The majority of this court now joins with the referee and the Board in determining that Claimant became ineligi *476 ble for unemployment compensation benefits after taking the full-time real estate sales job in January 2002. For the following reasons, I cannot agree.

Section 4(u)

Section 401 of the Law provides that compensation shall be payable to any employee who is or becomes unemployed and who meets the qualifications required to secure compensation. 43 P.S. § 801. Section 4(u) of the Law provides two independent definitions of the term “unemployed” as follows.

An individual shall be deemed unemployed (I) with respect to any week (i) during which he performs no services for which remuneration is paid or payable to him and (ii) with respect to which no remuneration is paid or payable to him, or (II) 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.

43 P.S. § 753(u) (emphasis added). There is no question that, because he works full-time, Claimant does not satisfy the second definition. As to the first definition, the majority concedes that, with the exception of one week in April of 2002, Claimant received no remuneration during the period in question. Nevertheless, because Claimant worked on a commission basis, performing services for which remuneration could eventually be payable to him, the majority concludes that Claimant was not “unemployed” as that term is statutorily defined. 4

In support of its position, the majority relies on Myers v. Unemployment Compensation Board of Review, 101 Pa. Cmwlth. 149, 515 A.2d 1013 (1986), Jeter v. Unemployment Compensation Board of Review, 78 Pa.Cmwlth. 279 , 467 A.2d 418 (1983), and Unemployment Compensation Board of Review v. Miedama, 27 Pa.Cmwlth. 207 , 365 A.2d 900 (1976). At first blush, these cases do appear to control. Ultimately, however, I conclude that these *477 cases are not dispositive under the circumstances presented here.

As the majority correctly notes, in both Myers and Jeter , we state that the expectation of possible future benefits can constitute remuneration as intended by section 4(u). However, both Myers and Jeter cite Miedama for that principle. Simply put, Miedama never uses this language and cannot be read as standing for this proposition.

Miedama stands only for the proposition that “remuneration” as intended in section 4(u) of the Law need not be so strictly construed that it applies only to “financial” remuneration. In that case, when the claimant lost her job with one travel agency, she agreed to “volunteer” her services at another travel agency in exchange for the use of their facilities. Access to these facilities enabled her to continue to participate in her profession and retain her clients. We concluded that, although the claimant was not “paid” for her services at the new agency, she received remuneration in a different form, removing her from the definition of “unemployed” in section 4(u). Thus, Miedama did not concern possible future benefits of financial remuneration; rather, it dealt with current remuneration that was not monetary.

Moreover, both Myers and Jeter are significantly distinguishable from the present matter. In Myers , after the claimant lost her job, she began volunteering administrative services to a different employer, who made it clear to the claimant that she would not be paid for her work as an administrator unless and until the employer brought in some money through sales. Nevertheless, when the claimant submitted an invoice for her “volunteer” services, the employer paid. Thus, there was no question that the claimant received financial remuneration for these services; the issue in Myers was whether, in light of this subsequent remuneration, the claimant should be subject to a fault overpayment for collecting benefits during her period of “volunteer” work. Because the claimant had been told specifically that she would not be paid for those services, we concluded that she filed valid applications during the period involved and, thus, should not be assessed fault overpayments.

In Jeter , the claimant was laid off when the public contract under which she was paid was not renewed. The claimant then began performing her job voluntarily, having been promised that she would be paid for these services if the contract were renewed. When the contract subsequently was renewed, the claimant received a “bonus” equal to the salary she would have received if there had been no interruption in the contract. The court in Jeter held that under circumstances where the claimant “performs services upon the expectation of receiving a possible future benefit, and then receives that hoped for benefit,” the claimant was not unemployed during the period of “volunteer” work under section 4(u). Jeter, 467 A.2d at 420 (emphasis added). Because the claimant in Jeter received remuneration attributable to services performed, as promised, that case does not control the question of a claimant’s eligibility for benefits where, as here, the claimant’s hopes are not ultimately realized.

I do not read any of the above cited cases as necessarily defeating the argument made by Claimant here that he received no unemployment compensation benefits to which he was not entitled, where the record establishes that, although Claimant worked as a real estate salesperson with the hope that he would receive remuneration for his efforts, his hopes were not realized. In that sense, this appears to be a case of first impression. Significantly, my research has un *478 covered no case in which the court equates unrealized hopes for payment with remuneration paid or payable.

In addition, the cases of Marr v. Unemployment Compensation Board of Review, 12 Pa.Cmwlth. 82 , 314 A.2d 596 (1974), and Laswick v. Unemployment Compensation Board of Review, 10 Pa.Cmwlth. 356 , 310 A.2d 705 (1973), would seem to support Claimant’s argument. In Marr , the claimant' was laid off from her work as a receptionist and, while receiving unemployment compensation benefits, began work as a jewelry demonstrator, with pay only through commissions on sales. In La-swick, the claimant lost his job as a development engineer and, while receiving compensation, attempted to sell promotional material to banks on a commission basis. Although they dealt with the issue of self-employment, in each of these cases, we recognized the principle that an eligible claimant may continue to receive benefits during periods of employment by others, with his employment benefits reduced on account of remuneration received from the employer. We did not include remuneration that the claimants had hoped to receive from sales never made. In fact, in Marr , after concluding that the Board erred in denying benefits based on self-employment, we noted that the Board also may have erred in determining that the claimant was not “unemployed” under section 4(u). We stated that it was possible that, although employed, the claimant may have received no remuneration for his activities and may have had no expectation of receiving any remuneration for those activities in the future, due to a lack of sales.

In this case, although Claimant expended considerable time and energy in an effort to make sales, the record is clear that he was unsuccessful in these attempts. Therefore, I would disagree with the majority that there was any remuneration payable, or any remuneration that could be payable, to Claimant for the weeks at issue. As the majority states, a commission is a fee earned by an agent for transacting an item of business; the amount normally is a percentage of the money received by the agent for conducting the business. (Majority op. at 472, citing Merriam-Webster Collegiate Dictionary 230 (10th ed.2001)) (emphasis added). Where, as here, a commissioned salesperson makes no sales, i.e., he transacts no business, he is not entitled to receive any commission, and there can be no remuneration payable to that individual. Accordingly, I would conclude that Claimant satisfies the first definition of “unemployed” set forth in section 4(u)(/) of the Law, where he performed no services for which remuneration was paid or payable during the period in question, and, in fact, there was no remuneration paid or payable to Claimant during this time.

Section 4(Z )(4)(17)

Moreover, even if the Board is correct, and Claimant was “employed” within the meaning of section 4(u) of the Law, I believe he would remain entitled to benefits under the exception in section 4(Z)(4)(17) of the Law, 43 P.S. § 753(i )(4)(17). This section provides, in pertinent part:

The word “employment” shall not in clude—

—Service performed by an individual for an employer as an insurance agent or real estate salesman or as an insurance solicitor or as a real estate broker or as a solicitor of applications for, or salesman of, shares of or certificates issued by an investment company, or as an agent of an investment company, ■ if all such service performed by such individual for such employer is performed for remuneration solely by way of commission, or services performed by an individual as an unsalaried correspondent for a newspaper, who receives no *479 compensation, or compensation only for copy accepted for publication.

43 P.S. § 753(l )(4)(17) (emphasis added).

Here, the undisputed facts establish that Claimant was a real estate salesperson working solely on commission; as such, he remained eligible for unemployment compensation benefits pursuant to section 4(1 )(4)(17) of the Law. 5 Shoemaker v. Unemployment Compensation Board of Review, 138 Pa.Cmwlth. 403 , 588 A.2d 100 (1991). 6 Thus, I would conclude that the Board erred in denying benefits to Claimant based on his employment as a commission only real estate salesperson.

Accordingly, for these reasons, I would reverse the order of the Board.

. Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. § 874(a). Section 804(a) of the Law provides that when a person, by reason of his own fault, has received compensation under the Law to which he was not entitled, he shall be liable to repay the amount received, plus interest, to the Unemployment Compensation Fund. 43 P.S. § 874(a). As explained in this dissenting opinion, I would hold that Claimant remained eligible for unemployment compensation benefits throughout the period in question, and, on that basis, I would conclude that there was no overpayment to be recouped under this section of the Law. However, even if I believed that Claimant received compensation to which he was not entitled, I would agree with the majority that the referee and the Board erred in concluding that Claimant received an overpayment through his own fault, which could be recouped under section 804(a) of the Law.

. Claimant finally earned his first commission from his real estate sales on April 17, 2002, and he reported the resulting $471.00 in earnings to his local unemployment compensation service center. (Referee's Findings of Fact, Nos. 6-7.)

. In doing so, the Board further concluded that Claimant "would also be ineligible for benefits under Section 402(h) and 4(1 )(2)[(B)] of the Law regarding self employment and independent contractors.” (Board op., O.R., Item 10.) Although the majority had no need to address the issue of Claimant's self-employment, my disposition of the case would require me to consider the matter. That being the case, I would reject the Board’s determination that Claimant was self-employed and, thus, rendered ineligible for benefits under sections 402(h), (ineligibility for self-employment), and 4(1 )(2)(B) of the Law, (determination of employment based on a lack of control or direction over the work).

Initially, I observe that the Law does not specifically define the term "self-employment"; instead, the definition of the term "employment” in section 4(1 )(2)(B) specifically excludes services performed under circumstances where it is shown that (a) the individual is free from control or direction over the performance of such services, and (b) the individual is customarily engaged in an independently established trade, occupation, profession or business. 43 P.S. § 4(1 )(2)(B). Before a claimant may be declared ineligible for benefits due to self-employment, both elements of section 4(Z)(2)(B) must be established either by the employer or, where the employer is not involved, by the unemployment compensation authorities. Wolff v. Unemployment Compensation Board of Review, 79 Pa.Cmwlth. 352 , 468 A.2d 1213 (1984); Crenshaw v. Unemployment Compensation Board of Review, 50 Pa.Cmwlth. 136 , 412 A.2d 682 (1980). That burden has not been met in this case; indeed, neither the referee nor the Board made any findings relevant to the question of self-employment.

Moreover, I disagree that a real estate salesperson, who is not also a real estate broker, can qualify as self-employed under the Law. In this regard, I am guided by the Real Estate Licensing and Registration Act (Act), Act of February 19, 1980, P.L. 15, as amended, 63 P.S. §§ 455.101-455.902. It is apparent from relevant sections of the Act that, although he may have been an independent contractor, Claimant also was considered to be an employee of Coldwell Banker. Section 201 of the Act, 63 P.S. § 455.201 (emphasis added) (defining "Salesperson” as "Any person employed by a licensed real estate broker” and stating that the use of the word "employee” or "employed” in the Act applies both to "the relationship of independent contractor as well as to the relationship of employment.”) Further, it is clear that Claimant was trained by Coldwell Banker as a salesperson and was subject to Coldwell Banker’s ongoing supervision. Section 522(b) of the Act, 63 P.S. § 455.522(b) (requiring an applicant for a salesperson's license to submit a sworn statement from the broker with whom he desires to be affiliated certifying that the broker will actively supervise and train the applicant). Indeed, the Pennsylvania State Real Estate Commission has the power to revoke a broker's license where the broker has been found guilty of "failing to exercise adequate supervision over the activities of his licensed salespersons.” Section 604(a)(16) of the Act, 63 P.S. § 455.604(a)(16); Dougherty v. State Real Estate Commission, 99 Pa.Cmwlth. 397 , 513 A.2d 555 (1986), appeal denied, 515 Pa. 587 , 527 A.2d 547 (1987). Finally, under his current license, Claimant was not free to sell real estate for any broker other than Coldwell Banker, section 603(a) of the Act, 63 P.S. § 455.603(a); in fact, he is forbidden from receiving commissions from any other source. Section 604(a)(12) of the Act, 63 P.S. § 604(a)(12); see Eill v. Tegler, 722 A.2d 200 (Pa.Super.1998) (holding that a real estate salesperson may not sue a third party for unpaid real estate brokerage commissions; only a licensed broker may maintain such an action). These factors all lead me to conclude that real estate salespersons, such as Claimant, are not self-employed within the meaning of the Law.

. In this regard, the majority adopts the Board's, rather than the referee's, reasoning. In his opinion, the referee determined that Claimant's lack of remuneration was immaterial and concluded that Claimant could not be considered "unemployed” under section 4(u) because he was involved in real estate sales on a full-time basis. However, a reading of the referee’s analysis of the issue reveals the flaw in this reasoning. The referee states:

Section 401 provides that compensation shall be payable to any employee who is or becomes unemployed. Section 4(u) provides that an individual shall be deemed unemployed (I) with respect to any week (i) during which he performs no services for which remuneration is paid or payable to him and (ii) with respect to any week of less than 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 .... as the claimant was working on a full-time basis, he is ineligible for benefits under Sections 401,4(u) ... of the law.

(Referee's op., O.R., Item 8) (emphases added). It is apparent that the referee misinterpreted section 4(u) as requiring a claimant to satisfy both definitions of "unemployed” before he or she would qualify for benefits and, therefore, Claimant’s full-time work necessarily would make him ineligible for benefits under section 4(u). Of course, the fact that Claimant works full-time trying to sell real estate raises the issue of Claimant's possible ineligibility for unemployment compensation benefits under section 401(d) of the Law, 43 P.S. § 801(d), which requires that a claimant be available for suitable work. However, I note that this issue has not been raised. Moreover, there is nothing in the record to indicate that Claimant would refuse to accept an offer of suitable employment, particularly given his lack of success in the field of real estate. In fact, until successfully rebutted, a claimant is entitled to the presumption of availability once he or she registers for work with OES. Pennsylvania Electric Co. v. Unemployment Compensation Board of Review, 73 Pa.Cmwlth. 258 , 458 A.2d 626 (1983).

. The Board does not refute Claimant's argument concerning the applicability of section 4(1 )(4)(17) to the present matter. Rather, the Board maintains that, because Claimant failed to raise a section 4(Z)(4)(17) argument prior to his appeal to this court, he has waived the issue and, therefore, we should not consider it. Alternatively, the Board asserts that, if Claimant did not waive the issue, we must remand so that the Board has the opportunity to rule on the matter. I disagree with both of the Board’s contentions.

Here, OES framed the issue of Claimant's ineligibility for unemployment compensation benefits in its most general terms, maintaining that Claimant was no longer "unemployed” within the meaning of the Law. At every stage of the proceedings, Claimant argued that he remained unemployed and, thus, eligible for benefits. Subsumed within this argument is the possible application of section 4(Z)(4)(17). Moreover, at the hearing before the referee, Claimant presented facts sufficient to establish his continuing entitlement to benefits as a matter of law; the fact that the referee and the Board failed to consider all relevant aspects of that question is of no moment. Further, contrary to the Board’s claim, no remand is necessary here. The referee’s findings, adopted by the Board, establish that Claimant was involved in real estate sales and was paid solely by commission. If, as in this case, we are able to apply the law to the facts already determined, we will do so rather than remand. Shoemaker v. Unemployment Compensation Board of Review, 138 Pa.Cmwlth. 403 , 588 A.2d 100 (1991).

. As to the applicability of section 4(1 )(4)( 17) of the Law in the present case, I recognize that this section generally is applied to issues dealing with a claimant’s financial eligibility for benefits. See e.g., American General Life and Accident Insurance Company v. Unemployment Compensation Board of Review, 166 Pa.Cmwlth. 360 , 648 A.2d 1245 (1994), appeal denied, 544 Pa. 636 , 675 A.2d 1252 (1996); Cameron v. Unemployment Compensation Board of Review, 68 Pa.Cmwlth. 407 , 449 A.2d 123 (1982). However, it seems logical that, if an individual is not considered eligible for benefits when he loses a job as a real estate salesperson working solely on commission (because this work is not considered to be "employment”), an otherwise eligible individual should not forfeit benefits when he attempts to sell real estate on a commission only basis. Shoemaker applies section 4(1 )(4)(17) in precisely this manner.