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HERMAN MATTHEWS v. COMMONWEALTH PENNSYLVANIA (04/05/83)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: April 5, 1983.

HERMAN MATTHEWS, 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 Herman Matthews, No. B-194703.

COUNSEL

Herman Matthews, petitioner, for himself.

Francine Ostrovsky, Associate Counsel, with her, Richard L. Cole, Jr., Chief Counsel, for respondent.

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

Author: Macphail

[ 73 Pa. Commw. Page 268]

Herman J. Matthews (Claimant) appeals here from an order of the Unemployment Compensation Board of Review (Board) which affirmed the decision of a referee and denied him benefits under Section 404(d)(iii)*fn1 of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L. 2897, as amended, 43 P.S. § 804(d)(iii). The Board found Claimant was ineligible for benefits under § 404(d)(iii) because that section requires that his United States Postal Service disability pension be deducted from his weekly unemployment compensation benefit rate. Since Claimant's weekly pension payment exceeded his weekly benefit rate,*fn2 the Board further held that Claimant's unemployment compensation benefits were completely offset.

In his petition for appeal and his pro se brief, Claimant contends that he is entitled to unemployment

[ 73 Pa. Commw. Page 269]

    compensation benefits*fn3 because his disability retirement papers were in process before the effective date of the amendment to Section 404(d), and that under the old law*fn4 his pension payments could not be used to reduce his unemployment compensation benefits. We disagree.

Although Claimant applied for his disability retirement pension on March 3, 1980, he was not unemployed at that time. Claimant's last day of work was September 9, 1980, and the first week for which Claimant filed a claim for unemployment compensation benefits was the week ending September 20, 1980. Section 404(d)(iii) provides in pertinent part that "each eligible employe who is unemployed with respect to any week ending subsequent to the first day of July, one thousand nine hundred eighty, shall be paid, with respect to such week. . . ." (Emphasis added). The revelant question is not when did Claimant apply for his disability pension, but rather when was Claimant unemployed? It is the date of unemployment that

[ 73 Pa. Commw. Page 270]

    determines eligibility for unemployment compensation benefits. In this case, Claimant was not unemployed until September of 1980, after the effective date of the amendments to Section 404(d).

We note further that the amendments to the pension provisions of the Law were enacted on July 10, 1980, but are retroactive to claims beginning on or after March 31, 1980.*fn5 Clearly, Claimant's claim petition is governed by the amendments to Section 404(d), which provide for a dollar-for-dollar reduction of his weekly benefit rate, by any pensions he is receiving which are based on previous employment. His eligibility and his claim for unemployment compensation benefits did not arise until his unemployment in September of 1980, over five months after the effective date of the amendments. Accordingly, we enter the following order.

Order

It is ordered that the order of the Unemployment Compensation Board, numbered B-194703 and dated April 27, 1981, is hereby affirmed.

Judge Doyle dissents.

Disposition

Affirmed.


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