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ALLEN H. MOHREY v. COMMONWEALTH PENNSYLVANIA (03/15/84)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: March 15, 1984.

ALLEN H. MOHREY, JR., 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 Allen H. Mohrey, Jr., No. B-195071.

COUNSEL

Charles R. Osinski, for petitioner.

Richard F. Faux, Associate Counsel, with him Richard L. Cole, Jr., Chief Counsel, for respondent.

Judges Craig, Doyle and Barbieri, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 81 Pa. Commw. Page 94]

Before this Court is an appeal by Allen H. Mohrey, Jr. (Claimant) from a decision and order of the Unemployment Compensation Board of Review (Board) directing that his weekly benefits rate be reduced by an amount equal to the weekly sum received from a military pension. We must affirm.

The facts of this case are undisputed. Claimant was laid off from his job as a packer at General Electric Co. on July 11, 1980, for lack of work. After applying for unemployment compensation, he established an entitlement to $162.00 per week in benefits. Because of a $450.00 per month pension which Claimant receives from having spent nearly twenty-four years in the Marine Corps., however, it has been determined that the amount of $103.00 should be deducted on a weekly basis from his compensation, thereby leaving him with a total award of $59.00 per week.*fn1 See Section 404(d)(iii) of the Unemployment

[ 81 Pa. Commw. Page 95]

Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 804(d)(iii).

In his appeal to this Court, Claimant argues that Section 414(a) of the Multiemployer Pension Plan Amendments Act of 1980 (MEPPA), 26 U.S.C. § 3304(a)(15) (Supp. IV 1980), amended by 26 U.S.C. § 3304(a)(15) (Supp. V 1981),*fn2 restricts pension off-set of unemployment compensation benefits to those pension payments received from a claimant's base period employer and preempts state law to the contrary such as Pennsylvania's. As General Electric Co. is his base period employer, and the pension results from his service in the Marine Corps., Claimant argues that any pension off-set of his unemployment compensation after January 1, 1981, the effective date of Section 414(a) of the MEPPA, is improper. We are constrained to disagree.

The constitutional aspects of Claimant's argument were expressly rejected by this Court in Novak v. Unemployment Compensation Board of Review, 73 Pa. Commonwealth Ct. 148, 457 A.2d 610 (1983). Consistent therewith, we must again reject them here.

[ 81 Pa. Commw. Page 96]

Claimant also tenders the theory that Pennsylvania's pension off-set requirements have been statutorily preempted. He states that Section 414(a) of the MEPPA is an amendment to the Employee Retirement Income Security Act of 1974 (ERISA) and thus subject to the preemption language of Section 514(a) of that act,*fn3 29 U.S.C. § 1144(a)(1976), which reads:

Except as provided in subsection (b) of this section, the provisions of this subchapter and subchapter III of this chapter shall supersede any and all State laws insofar as they may now or hereafter relate to an employee benefit plan described in section 1003(a) of this title and not exempt under section 1003(b) of this title. This section shall take effect on January 1, 1975.

The MEPPA, however, amends both ERISA and the Internal Revenue Code of 1954.*fn4 In every instance, it is clear which piece of legislation is being amended by each individual section of the MEPPA. Section 414(a), by its terms of enactment, amends "[p]aragraph (15) of Section 3304(a) of the Internal Revenue Code of 1954.*fn5 . . ." Pub. L. No. 96-364, § 414(a), 94 Stat. 1208, 1314 (1980) (emphasis added). As such, ERISA is not the subject of the amendment by

[ 81 Pa. Commw. Page 97]

Section 414(a) and the preemptive language of Section 514(a) is not pertinent to the instant appeal.

Accordingly, we must reject Claimant's claim of statutory preemption.

Order

Now, March 15, 1984, the decision and order of the Unemployment Compensation Board of Review, No. B-195071, dated May 7, 1981, is hereby affirmed.

Disposition

Affirmed.


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