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MICHAEL MOROCCO v. COMMONWEALTH PENNSYLVANIA (10/26/78)

decided: October 26, 1978.

MICHAEL MOROCCO, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeals from the Orders of the Unemployment Compensation Board of Review in cases of In Re: Claims of Michael Morocco, B-141867, B-141868, B-141869 and B-141870.

COUNSEL

Richard G. Raff, for petitioner.

Michael Klein, Assistant Attorney General, with him Sydney Reuben, Assistant Attorney General, and Robert P. Kane, Attorney General, for respondent.

Judges Crumlish, Jr., Rogers and Craig, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 38 Pa. Commw. Page 286]

Michael Morocco has appealed from an order of the Unemployment Compensation Board of Review (Board) affirming a referee's decision imposing a fault overpayment in the amount of compensation received for weeks during which the appellant failed to report earnings.

There is no dispute as to the facts. Mr. Morocco was validly separated from employment at the Westinghouse Electric Corporation on August 22, 1975. He was thereafter determined eligible for a weekly compensation benefit of $85.00 and a partial benefit credit of $34.00. Each week, from the week ending September 6, 1975 until the week ending March 20, 1976, upon reporting to the employment office to receive his

[ 38 Pa. Commw. Page 287]

    benefits, Mr. Morocco was required to state whether he was working. Each week he reported that he was not. In fact, on September 5, 1975 Mr. Morocco began working part-time as a musician earning $40.00 per week, an amount $6.00 in excess of his partial benefit credit. Mr. Morocco testified that he failed to report these earnings because he was afraid they would cause him to be disqualified from receiving benefits.

Section 801(b) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. ยง 871(b) provides in pertinent part that

[w]hoever makes a false statement knowing it to be false, or knowingly fails to disclose a material fact to obtain or increase any compensation . . . may be disqualified in addition to such week or weeks of improper payment for a penalty period of two weeks. . . .

No clearer expression for Mr. Morocco's disqualification by law for any benefits for the weeks in question could be fashioned.

Mr. Morocco asserts nevertheless that he should not have been held disqualified from all benefits but only that the amount of benefit he otherwise would have received should have been reduced by the amount by which his earnings exceeded his partial benefit credit. In support of this position he advances Unemployment Compensation Board of Review v. Fabric, 24 Pa. Commonwealth Ct. 238, 354 A.2d 905 (1976), Snyder Unemployment Compensation Case, 194 Pa. Superior Ct. 622, 169 A.2d 578 (1961). These cases are clearly distinguishable. In Fabric we held that a claimant who voluntarily leaves part-time employment is ...


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