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COMMONWEALTH PENNSYLVANIA v. COMMONWEALTH PENNSYLVANIA (03/07/79)

decided: March 7, 1979.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF LABOR AND INDUSTRY, BUREAU OF EMPLOYMENT SECURITY, 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 Kenneth John Austin, No. B-150150.

COUNSEL

Robert E. Chernicoff, Assistant Attorney General, for petitioner.

Daniel R. Schuckers, Assistant Attorney General, with him Gerald Gornish, Attorney General, for respondent.

Judges Wilkinson, Jr., Mencer and Craig, sitting as a panel of three. Opinion by Judge Wilkinson, Jr.

Author: Wilkinson

[ 41 Pa. Commw. Page 105]

This is a case of first impression involving a very narrow issue. Does Section 804(b) of the Pennsylvania Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 874(b), which deals with the problem of non-fault overpayments, require that recoupment of these overpayments be restricted to a maximum of one-third of a claimant's benefits (benefits to which he is entitled from a subsequent and separate unemployment claim, which occurs during the same year as the overpayment) or may the recoupment be total. The Unemployment Compensation Board of Review (Board) found recoupment was limited to one-third of claimant's check. We affirm the Board.

[ 41 Pa. Commw. Page 106]

Kenneth John Austin (claimant) received unemployment benefits for the weeks ending February 15, 1975 through April 5, 1975 inclusive. This determination was appealed by his employer and the referee reversed, finding claimant ineligible for benefits for the same weeks. This decision was not appealed. As a result, the Bureau of Employment Security (Bureau) ruled on June 30, 1975 that the $568.00 paid to the claimant for those weeks represented a non-fault overpayment pursuant to Section 804(b) of the Law.

Claimant got another job and through no fault of his own lost it. He again became eligible for unemployment benefits of $71.00 for the week of September 27, 1975. On October 2, 1975, the Bureau determined that all of the claimant's $71.00 benefit check would be applied to the non-fault overpayment, leaving him a take-home balance of zero. Claimant appealed and on January 26, 1976 the referee modified the Bureau's decision, by saying that the $71.00 recoupment could stand, but any future payments could only be recouped by one-third. This was appealed by the Bureau to the Board. On October 13, 1977, the Board affirmed the referee and added also that the one-third recoupment formula should also apply to the $71.00 payment for the week of September 27, 1975. This appeal followed.

The problem is one of semantics. Section 804(b) of the Law provides in pertinent part that:

(b) Any person who other than by reason of his fault has received with respect to a benefit year any sum as compensation under this act to which he was not entitled shall not be liable to repay such sum but shall be liable to have such sum deducted from any future compensation payable to him with respect to such benefit year, or the three-year period immediately following such benefit year: Provided, That

[ 41 Pa. Commw. Page 107]

    with respect to overpayments of one hundred dollars or more, recoupment from such future compensation shall not exceed one-third of the maximum benefit amount to which such person is entitled during any such subsequent benefit year nor one-third of the weekly benefit ...


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