Appeal by employer, from decision of Unemployment Compensation Board of Review, No. B-91845-A, in re claim of Nancy G. Colbert.
John McD. Sharpe, Jr., with him Sharpe & Sharpe, for appellant.
Sydney Reuben, Assistant Attorney General, with him Edward Friedman, Acting Attorney General, for Unemployment Compensation Board of Review, appellee.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Wright, J. Dissenting Opinion by Watkins, J. Hoffman and Spaulding, JJ., join in this dissent.
[ 208 Pa. Super. Page 292]
This case arises under the Unemployment Compensation Law, Act of December 5, 1936, P. L. (1937) 2897, 43 P.S. 751 et seq., and involves the first application by this court of the most recent amendment to Section 401(f)(2) of the statute, 43 P.S. 801(f)(2). It will be necessary to recite the history of the case in some detail.
Mrs. Nancy G. Colbert was last employed as a presser by Stanley Manufacturing Company, Chambersburg, Pennsylvania. It was a known policy of this employer that, in case of pregnancy, the employe must not work beyond the first six months of the gestation period. Having become pregnant, Mrs. Colbert applied for a leave of absence, which was granted for a period of four months from November 25, 1964. The child was born prematurely on December 27, 1964. Mrs. Colbert
[ 208 Pa. Super. Page 293]
applied for reinstatement on March 18, 1965, at which time her physician certified that the date of the child's birth had been estimated to be February 17, 1965. The employer refused to rehire Mrs. Colbert on the ground that she was guilty of wilful misconduct under Section 402(e) of the statute (43 P.S. 802(e)) because she had violated company policy by working beyond the six-months period. The Bureau of Employment Security sustained the employer's position and denied benefits. The Referee reversed the Bureau. On August 20, 1965, the Board of Review affirmed the Referee's decision on a different ground, namely, that claimant's unemployment was due to a reduction in the employer's work force. Following an appeal by the employer to this court at No. 757 October Term 1965, the Board presented a petition for remission of the record. By stipulation of counsel, we entered a remand order on November 26, 1965. Without taking additional testimony, the Board filed a second decision, February 9, 1966, again sustaining the Referee, but solely on the ground that Mrs. Colbert was not guilty of wilful misconduct. The present appeal by the employer followed.
Appellant does not here assert that claimant was guilty of wilful misconduct. However, that is not an end to the case. The Commonwealth has an interest in the unemployment compensation fund, and the duty exists to protect the fund against dissipation by those not entitled to benefits under the law: Lybarger Unemployment Compensation Case, 203 Pa. Superior Ct. 336, 201 A.2d 310; affirmed 418 Pa. 471, 211 A.2d 463.
We are in accord with appellant's contention that Mrs. Colbert's claim is barred by the present language of Section 401(f)(2) of the statute. As amended March 24, 1964, this section reads in pertinent part as follows: "Compensation shall be payable to any employee who is
[ 208 Pa. Super. Page 294]
or becomes unemployed, and who . . . (f) . . . (2) with respect to an individual . . . on leave of absence for reasons of pregnancy has earned remuneration for services performed subsequent to the . . . termination of leave of absence . . . in an amount equal to or in excess of four (4) times her weekly benefit rate . . . Provided, however, that the provisions of this clause (2) shall not be applicable if the claimant (a) is unable to resume her employment . . . because of a reduction in force or because the business of such employer is closed down for reasons other than vacation . . . The provisions of this subsection shall not apply to a suspension of work by an individual pursuant to a leave of absence other than leave ...