Appeal from the Order of the Unemployment Compensation Board of Review in case of In re: Claim of Troy C. Hayes, No. B-208660.
John Stember, for petitioner.
Richard F. Faux, Associate Counsel, with him, Richard L. Cole, Jr., Chief Counsel, for respondent.
Judges Williams, Jr., Craig and Doyle, sitting as a panel of three. Opinion by Judge Williams. Judge Joseph T. Doyle dissents.
[ 86 Pa. Commw. Page 115]
Troy C. Hayes appeals from the decision and order of the Unemployment Compensation Board of Review denying benefits and assessing a non-fault overpayment.
Hayes does not contest the Board's factual findings; furthermore, we find no significant conflict between the findings and the record evidence. Those findings and the record reflect that Hayes was employed as a grinder for a manufacturing company for eight years. On October 24, 1981, he received an indefinite lay-off; he subsequently applied for and was granted unemployment compensation benefits. In December of 1981, while Hayes was still on lay-off, the employer was notified by its medical insurance carrier that inflated drug prescription claims had been submitted under Hayes' coverage. The employer made an independent investigation and determined that during a period of approximately three years, false claims in an amount in excess of $600.00 had been made on Hayes' medical coverage. When confronted with the results of the investigation, Hayes asserted that he was unaware of the false claims, and that they were
[ 86 Pa. Commw. Page 116]
made by his wife; he offered to make restitution. As a result of its investigation, the employer suspended Hayes, and then converted the suspension to a discharge, effective January 26, 1982.
Based on its finding that "[f]alsified claims had been submitted by the claimant or on his behalf. . ." (emphasis added), the Board determined that Hayes was ineligible for benefits pursuant to Section 402(e) of the Unemployment Compensation Law*fn1 due to willful misconduct from the date of his suspension. Hayes contends that the Board erred by attributing his unemployment to the suspension and discharge when at no time covered by the record was there any immediate prospect of his being recalled to work.
Coleman v. Unemployment Compensation Board of Review, 46 Pa. Commonwealth Ct. 295, 406 A.2d 259 (1979) is controlling on this issue. In Coleman, a claimant was laid off from his job under circumstances which qualified him for benefits. Subsequent to his lay-off the claimant engaged in conduct which constituted willful misconduct by assaulting the employer's personnel manager. Despite this misconduct, we determined the claimant eligible for benefits until such time as he would have been recalled but for the incident for which he was discharged. We stated that "[p]rior to a time when Coleman would have been recalled from lay-off, his unemployment was due to having been laid off. . . ." 46 Pa. Commonwealth Ct. at 296, 406 A.2d at 260. Similarly, Hayes' unemployment was due to lay-off until such time as he would have been recalled had it not been for his suspension and discharge.
[ 86 Pa. Commw. Page 117]
The Board argues that this case is distinguishable from Coleman in that the dischargeable offense in Coleman took place after the lay-off, while the alleged misconduct in this case occurred prior to the lay-off, and was only discovered thereafter. We do not credit this distinction. In addressing the Board's argument, we refer again to the analysis explicated in Campbell Unemployment Compensation Case, 175 Pa. Superior Ct. 592, 106 A.2d 687 (1954), a case which in Coleman we deemed dispositive. In Campbell, the claimant, after a qualifying lay-off, opted voluntarily to leave on retirement. While concluding that this retirement was a voluntary leaving without good ...