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JOSEPH L. ROZANC v. UNEMPLOYMENT COMPENSATION BOARD REVIEW COMMONWEALTH PENNSYLVANIA. JOSEPH L. ROZANC (12/07/76)

decided: December 7, 1976.

JOSEPH L. ROZANC
v.
UNEMPLOYMENT COMPENSATION BOARD OF REVIEW OF THE COMMONWEALTH OF PENNSYLVANIA. JOSEPH L. ROZANC, APPELLANT



Appeal from the Order of the Unemployment Compensation Board of Review, in case of In Re: Claim of Joseph L. Rozanc, No. B-130301.

COUNSEL

Robert L. Johnson, for appellant.

Charles G. Hasson, Assistant Attorney General, with him Sydney Reuben, Assistant Attorney General, and Robert P. Kane, Attorney General, for appellee.

Judges Wilkinson, Jr., Rogers and Blatt, sitting as a panel of three. Opinion by Judge Wilkinson.

Author: Wilkinson

[ 27 Pa. Commw. Page 370]

Appellant filed an application for unemployment compensation benefits with the Bureau of Employment Security (Bureau) and drew $2,139.00 in benefits during a 23 week period in 1973. On March 27, 1974, the Bureau issued a determination that the appellant had been ineligible for the benefits received because he had been a one-third (1/3) owner of the business that he had listed as his last employer. No appeal was taken from this determination.

On May 30, 1974, the Bureau issued a determination that the overpayment to the appellant had been a "fault overpayment" within the meaning of Section 804(a) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. ยง 874. Under Section 804(a) the Bureau can recoup "fault overpayments" either directly from the appellant or by deducting them from any future compensation payable to him under the Act. Under Section 804(b), however, liability for "nonfault overpayments" is limited to deductions from future benefits.

Appellant took a timely appeal from the determination of fault and a hearing was held before an unemployment compensation referee on June 24, 1974. The referee found that no partnership existed, that appellant was an employee and, therefore, there was no overpayment. It necessarily follows that since the referee found no overpayment, the issue of fault was never reached.*fn1

The decision of the referee was reversed by the Unemployment Compensation Board of Review (Board) reinstating Bureau's determination that the

[ 27 Pa. Commw. Page 371]

    overpayment was a "fault overpayment." The Board found that since the claimant did not appeal the Bureau's initial determination of ineligibility on March 27, 1974, recoupment under Section 804(a) was proper. We disagree and reverse and remand for a determination of the issue of fault.

The Board was correct when it stated that the issue of overpayment was not before the referee. As Judge Blatt wrote in Jones v. Unemployment Compensation Board of Review, 21 Pa. Commonwealth Ct. 250, 252, 344 A.2d 287, 288 (1975):

[B]ecause there was a right of appeal from the Bureau's determination of ineligibility such a determination could not be attacked collaterally in a later proceeding to determine whether or not the overpayments were due to the fault of the recipient. We cannot now, therefore, disturb the prior Bureau ...


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