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DON W. NOVAK v. COMMONWEALTH PENNSYLVANIA (03/25/83)

decided: March 25, 1983.

DON W. NOVAK, 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 Don W. Novak, No. B-197624.

COUNSEL

Stephen P. McCloskey, Phillips & Faldowski, for petitioner.

Marybeth A. Stanton, Deputy Attorney General, with her Allen C. Warshaw, Deputy Attorney General, Chief Special Litigation Section, and LeRoy S. Zimmerman, Attorney General, for respondent.

Judges Rogers, Williams, Jr. and Doyle, sitting as a panel of three. Opinion by Judge Williams, Jr. Judge Doyle dissents.

Author: Williams

[ 73 Pa. Commw. Page 149]

Don W. Novak (claimant) appeals an order of the Unemployment Compensation Board of Review denying him benefits under Section 404(d)(iii) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. ยง 804(d)(iii), which rendered him ineligible for benefits due to his receipt of a U.S. Marine Corps Military Pension.

The claimant was employed by the Penn-Birmingham Bolt Company from March 1980 until April 3, 1981 when he was laid off due to poor business conditions. Prior to his employment with the Bolt Company, he had served 22 years with the U.S. Marine Corps for which he receives a monthly pension of $1,199.99, or $276.00 weekly.

On April 5, 1981 the claimant applied for unemployment compensation benefits. It was established that he was entitled to $175/week with a total benefit entitlement of $5,250.00. After the filing of his application for benefits, he was notified by the Bureau of Unemployment Security that he would be ineligible for benefits as per Section 404(d)(iii) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43

[ 73 Pa. Commw. Page 150]

P.S. 804(d)(iii). Section 404(d)(iii) provides in pertinent part:

(d) [E]ach eligible employee . . . shall be paid . . . compensation in an amount equal to his weekly benefit rate less . . .

(iii) an amount equal to the amount of a governmental or other pension . . . which is based on previous work of such individual. . . .

The claimant contends that by virtue of a 1980 amendment to the Federal Unemployment Tax Act (FUTA),*fn1 federal law has pre-empted Section 404(d)(iii) in that this section is now in direct conflict with FUTA as amended. Accordingly, he asserts that ...


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