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SUSAN H. GAHRES v. COMMONWEALTH PENNSYLVANIA (08/06/81)

decided: August 6, 1981.

SUSAN H. GAHRES, 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 Susan H. Gahres, No. B-178035.

COUNSEL

Marian E. Frankston, for petitioner.

John T. Kupchinsky, Assistant Attorney General, with him 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 115]

The claimant*fn1 has appealed from a decision of the Unemployment Compensation Board of Review (board) which denied compensation on the ground that the claimant, who had been terminated as Director of the Bureau of Appalachian Development of the Pennsylvania Department of Commerce, was ineligible under Section 1002(11) of the Unemployment Compensation Law,*fn2 43 P.S. § 892(11), which excludes from compensable employment the jobs of:

(11) Individuals serving in positions which, under or pursuant to the laws of this Commonwealth, are designated as . . . a major non-tenured policymaking or advisory position. . . .

Without dispute, the claimant's position as a bureau head was a non-tenured one. The record also is clear that an incoming Secretary of the Department of Commerce dismissed the claimant, with no fault on her part being alleged. Moreover, the board, as respondent here, makes no claim that the position was a policymaking one, expressly acknowledging that the board's decision is based upon a holding that claimant's role was advisory. Therefore, the full question presented is:

Was claimant's position designated under or pursuant to the laws of the Commonwealth as a major advisory position?

[ 61 Pa. Commw. Page 116]

We note particularly that the terms of Section 1002(11) do not apply the exclusion to positions which are policymaking or advisory positions merely as a matter of fact. The law applies the exclusion to those which are so "designated" and describes the designation as being "under or pursuant to the laws of this Commonwealth." We must construe the statute to give effect to all of its wording, and, when the words are clear, we cannot disregard the literal language. 1 Pa. C.S. § 1921(a), (b). Of course, not even the claimant argues that the exclusion requires the existence of a provision of law which uses the precise words, "major" or "policymaking" or "advisory." However, there must be some official designation of the position as advisory (if not policymaking) under or pursuant to law -- that is, by the words of a statute, regulation, executive order or the like.

The logic of such a requirement is plain. The exclusion imposes ineligibility on the basis that any occupant of such a position can anticipate the possibility of job termination upon a change of administration, so that unemployment in such circumstances cannot be regarded as sudden and unexpected. The required official designation hence provides a basis for that expectation; when the nature of the position is designated by law, there is thus an official signpost which informs the jobholder, upon assuming the position, of what can be expected. Moreover, discrimination against the individual is avoided if ineligibility rests upon the official designation of the position, rather than upon the specific activities or personal performance of a particular incumbent.

We therefore turn to the legal provisions which should be examined with respect to the existence of an official designation. In the background is the federal ...


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