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JOSEPH TENAGLIA v. COMMONWEALTH PENNSYLVANIA (04/15/83)

decided: April 15, 1983.

JOSEPH TENAGLIA, 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 Joseph Tenaglia, No. B-200233.

COUNSEL

Kenneth W. Richmond, Rosengarten & Richmond, P.C., for petitioner.

Joel G. Cavicchia, Associate Counsel, with him, Richard L. Cole, Jr., Chief Counsel, for respondent.

President Judge Crumlish, Jr. and Judges Rogers and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 73 Pa. Commw. Page 454]

On March 1, 1975, Joseph Tenaglia (Claimant) was placed on a permanent service-connected disability pension by the City of Philadelphia in the amount of $784.23 per month.*fn1 Thereafter, Claimant was employed by the Home Unity Savings and Loan Company for four years. He was laid off on December 19, 1980 due to lack of work. Claimant's application for unemployment compensation benefits was denied by the Office of Employment Security. That denial of benefits was upheld by a referee whose decision was affirmed by the Unemployment Compensation Board of Review (Board).

The statutory basis for the denial of benefits was Section 404(d)(iii) of the Unemployment Compensation Law (Law), Act of December 5, 1936, P.L. (1937) 2897, Second Ex. Sess., as amended, 43 P.S. ยง 804(d)(iii) which reads in pertinent part as follows:

[E]ach eligible employe . . . 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, retirement

[ 73 Pa. Commw. Page 455]

    or retired pay, annuity, or any other similar periodic payment which is based on the previous work of such individual. . . .*fn2

It was determined that Claimant's weekly benefit rate based on his last employment would be $88.00 per week. His pension benefits pro-rated on a weekly basis would be $175.00. Since Claimant's pension benefit exceeded the unemployment compensation benefit to which he would have been entitled, such unemployment compensation benefits were denied.

There is no dispute as to the relevant facts in this case. The sole issue is one of law: may the Claimant's service connected disability pension be used to offset weekly unemployment compensation benefits for which Claimant would otherwise qualify?

The amendment to Section 404(d) enacted in 1980 substantially changed the provisions thereof. Prior to the 1980 amendment, the Law, ...


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