Appeal from the Order of the Unemployment Compensation Board of Review in the case of In Re: Claim of Ruby Bowe, No. B-221150.
Stephen B. Lipson, for petitioner.
Michael D. Alsher, Associate Counsel, with him, Charles Hasson, Deputy Counsel, and Richard L. Cole, Jr., Chief Counsel, for respondent.
Judges Rogers, Craig and Colins, sitting as a panel of three. Opinion by Judge Rogers. Judge Colins concurs in the result only.
[ 83 Pa. Commw. Page 222]
This unemployment compensation claimant appeals from an order of the Unemployment Compensation
[ 83 Pa. Commw. Page 223]
Board of Review (board) affirming and adopting a referee's decision that the claimant was ineligible for benefits under Section 1002(11) of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 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. . . . .
The claimant worked as Director of the Bureau of Policy Planning for the Commonwealth of Pennsylvania, Department of Community Affairs (employer) for approximately two and a half years. This was a non-Civil Service position. In March of 1983, the claimant was separated from her employment through no fault of her own and she promptly applied for unemployment compensation benefits. Her application was disapproved by the Office of Employment Security (OES) because of information provided by the employer to the effect that the claimant had worked in a "major non-tenured policymaking or advisory position" within the meaning of Section 1002(11) of the Law and, consequently, she had no base year wages and was financially ineligible for benefits. The referee affirmed the OES determination on the ground that the claimant's position was non-covered employment and the referee's decision was affirmed and adopted by the board.
The claimant's principal argument is that her position was not designated under or pursuant to the laws of this Commonwealth as a major non-tenured policymaking or advisory position as required by Section 1002(11).
[ 83 Pa. Commw. Page 224]
We have held that the exclusionary provision of Section 1002(11) does not apply to positions which are major non-tenured policymaking or advisory positions merely as a matter of fact and that the actual activities performed, or not performed, by the claimant are not controlling in determining the application of the exclusion. Gahres v. Unemployment Compensation Board of Review, 61 Pa. Commonwealth Ct. 114, 433 A.2d 152 (1981). Rather, Section 1002(11) requires ". . . some official designation communicating the concept that the position is policymaking or advisory, under or pursuant to law -- that is, a statute, regulation, executive order or ...