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COMMONWEALTH PENNSYLVANIA v. COMMONWEALTH PENNSYLVANIA (08/06/81)

decided: August 6, 1981.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF LABOR AND INDUSTRY, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeal from the Order of the Unemployment Compensation Board of Review in the case of In Re: Claim of Richard B. Stabinski, No. B-184214.

COUNSEL

Richard Cole, Assistant Attorney General, with him Jeffrey R. Miller, Assistant Attorney General, for petitioner.

John Kupchinsky, Assistant Attorney General, with him Stephen B. Lipson, Assistant Attorney General, Richard Wagner, Chief Counsel, and Harvey Bartle, III, Attorney General, for respondent.

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

Author: Craig

[ 61 Pa. Commw. Page 108]

The Pennsylvania Department of Labor and Industry (DLI) has appealed from a decision of the Unemployment Compensation Board of Review (board) which granted compensation to the claimant,*fn1 who had been terminated as Director of DLI's Bureau of Administrative Services.

DLI urges that the claimant was ineligible under Section 1002(11) of the Unemployment Compensation Law,*fn2 43 P.S. ยง 892(11), which excludes individuals in public positions "which, under or pursuant to the laws of this Commonwealth, are designated as . . . a major non-tenured policymaking or advisory position. . . ."

We have currently considered Section 1002(11) for the first time in Gahres v. Unemployment Compensation Board of Review, 61 Pa. Commonwealth Ct. 114, 433 A.2d 152 (1981). There we held that, although the exclusionary Section 1002(11) does not require the existence of a provision of law using the words of that section verbatim, there must be some official designation communicating the concept that the position is policymaking or advisory, under or pursuant to law -- that is, a statute, regulation, executive order or the like. In an approach consistent with the principles we thus expressed, DLI's brief in this case correctly argues that the actual activities performed, or not performed, by the claimant, are not controlling in determining the application of the exclusion, but may be examined only to verify the validity of the designation, if any.

Because there is here no dispute that the claimant's position was non-tenured and because, a state bureau head being involved, there is no question about it being a major one, the pivotal question is:

[ 61 Pa. Commw. Page 109]

Was the position designated as policymaking or advisory under or pursuant to law, i.e., by some statute, regulation or other official designation?

Neither DLI, as petitioner here, or the board, as respondent, have cited any statute or regulation which creates or describes the position which the claimant had occupied. Turning to the record, we find only a "Position Description" which, DLI asserts, is the one which governed the position which the claimant held. That position description, as the only possible source of an official designation in this case, provides that this position's incumbent "is responsible for the technical administration of the Bureau, Administrative Services," describing that bureau as handling the department's mail and messenger services, duplicating operations, supplies and equipment maintenance, communications and automotive needs, procurement and leasing. It states specifically that the occupant of the position

[p]lans, coordinates, and directs the technical administrative services functions for the ...


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