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ROBERT S. WHITE v. COMMONWEALTH PENNSYLVANIA (06/12/78)

decided: June 12, 1978.

ROBERT S. WHITE, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Robert S. White, No. B-135441.

COUNSEL

Timothy P. O'Brien, for petitioner.

Susan Shinkman, Assistant Attorney General, with her Sydney Reuben, Assistant Attorney General, and Robert P. Kane, Attorney General, for respondent.

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

Author: Wilkinson

[ 36 Pa. Commw. Page 259]

This is an appeal from a decision of the Unemployment Compensation Board of Review (Board) denying unemployment benefits to the petitioner. The Bureau of Employment Security (Bureau) had awarded benefits to the petitioner, but on appeal the referee reversed. We affirm the Board.

Claimant was employed by Wright Pontiac, Inc., until April 11, 1975. He was discharged on that date, and then applied for unemployment compensation. The Bureau, which was later affirmed by both the referee and the Board, denied claimant's application on the grounds of willful misconduct. No appeal was taken from the Board's decision in that matter, the decision having been rendered on August 5, 1975.

On November 7, 1975, claimant received an award from the National Labor Relations Board (NLRB) in the amount of $3,500.00. This award was issued pursuant to a settlement agreement, under the terms of which claimant did not return to work for his former employer. Claimant then reapplied for unemployment benefits on November 10, 1975. The Bureau granted claimant's request for benefits, relying on Section 401(f) of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. ยง 801(f). The referee reversed this determination, and on appeal the Board affirmed.

Section 401 of the Law, reads in relevant part as follows:

Compensation shall be payable to any employe who is or becomes unemployed, and who --

[ 36 Pa. Commw. Page 260]

(f) Has earned, subsequent to his separation from work under circumstances which are disqualifying under the provisions of subsections 402(b), 402(e) and 402(h) of this act, remuneration for services in an amount equal to or in excess of six (6) times his weekly benefit rate irrespective of whether or not such services were in 'employment' as defined in this act. . . .

The first issue which thus confronts us is whether the award given petitioner by the NLRB constitutes remuneration for services, so as to purge the ...


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