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NANCY V. GRAY v. COMMONWEALTH PENNSYLVANIA (03/20/85)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: March 20, 1985.

NANCY V. GRAY, 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 Nancy V. Gray, No. B-222721.

COUNSEL

Geoffrey M. Biringer, for petitioner.

James K. Bradley, Associate Counsel, with him, Charles G. Hasson, Acting Deputy Chief Counsel, for respondent.

Judges Rogers and Craig and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri. Judge Williams, Jr., did not participate in the decision in this case.

Author: Barbieri

[ 88 Pa. Commw. Page 285]

Nancy V. Gray, Claimant, appeals an order of the Unemployment Compensation Board of Review (Board) which affirmed a referee's denial of benefits under Section 403-A(h) of the Unemployment Compensation Law (Law).*fn1

The sole issue raised for our review is whether the Board erred in denying all shareable regular benefits*fn2 to Claimant because she voluntarily left her part-time job. On October 11, 1982, while receiving unemployment compensation benefits, Claimant took a part-time job as a store clerk at Handy Markets, Inc., for twenty hours per week at a pay rate of $3.35 per hour. She quit the job later that day. On October 25, 1982, a

[ 88 Pa. Commw. Page 286]

    referee found, under Section 402(b) of the Law,*fn3 that Claimant had left work without cause of a necessitous and compelling nature. Pursuant to this Court's decision in Unemployment Compensation Board of Review v. Fabric, 24 Pa. Commonwealth Ct. 238, 354 A.2d 905 (1976), the referee reduced Claimant's regular benefits by $67.00 per week.*fn4 Claimant did not appeal the referee's decision. Claimant subsequently applied for shareable regular benefits, commencing the week of April 9, 1983. The referee, as affirmed by the Board, denied all shareable regular benefits under Section 403-A(h) of the Law,*fn5 on the grounds that Fabric applies only to the denial of regular benefits under Section 402(b) of the Law, but not to the denial of shareable regular benefits under Section 403-A(h) of the Law.

Claimant, citing Fabric, argues that her shareable regular benefits should have been reduced rather than terminated. In Fabric, this Court held that "when a

[ 88 Pa. Commw. Page 287]

    claimant voluntarily leaves part-time employment within the meaning of Section 402(b)(1) of the Act, he is rendered ineligible for further benefits only to the extent that his benefits were decreased by virtue of his part-time earnings." Id. at 242-43, 354 A.2d at 908.

In Regan v. Unemployment Compensation Board of Review, 82 Pa. Commonwealth Ct. 648, 476 A.2d 483 (1984), this Court held that "an applicant for federally-funded extended benefits . . . who has voluntarily left part-time employment shall be ineligible for such benefits only to the extent that such benefits were decreased by her part-time earnings." Id. at 650, 476 A.2d at 484. The Court reasoned:

There is no basis for distinguishing between Section 402(b)(1) and Section 403-A(h). "Both . . . are general eligibility provisions which are routinely applied in appropriate cases." Id. at 240, 354 A.2d at 908. There is nothing inherent in Section 403-A(h) which would render the application of the procedure dictated by Fabric "illogical, unwise, or contrary to the purposes of the Act."

Id. at 650, 476 A.2d at 484.

Based on the Court's reasoning in Regan, we believe that Fabric applies to the denial of shareable regular benefits under Section 403-A(h) of the Law. We see no basis for distinguishing between the denial in Regan of federally-funded extended benefits under Section 403-A(h) of the Law and the denial in the present case of shareable regular benefits under that same statutory section. Consequently, we hold that Claimant is entitled to shareable regular benefits, reduced to the extent of her part-time earnings.*fn6

[ 88 Pa. Commw. Page 288]

The Board, relying on Section 202(a)(4) of the Federal-State Extended Unemployment Compensation Act of 1970,*fn7 argues that our holding in Regan is invalid and that Fabric cannot apply to cases involving federally-funded extended or regular shareable benefits. Section 202(a)(4) provides:

No provision of State law which terminates a disqualification for voluntarily leaving employment, being discharged for misconduct, or refusing suitable employment shall apply for purposes of determining eligibility for extended compensation unless such termination is based upon employment subsequent to the date of such disqualification.

We believe, however, that Section 202(a)(4) is inapplicable to the present case. Section 202(a)(4) applies only to provisions of State law which terminate a disqualification, whereas the rule set forth in Fabric does not terminate a disqualification, but merely provides that a disqualification due to a voluntary separation shall be partial under certain circumstances.

Accordingly, the decision of the Board will be reversed.*fn8

[ 88 Pa. Commw. Page 289]

Order

And Now, March 20, 1985, the order of the Unemployment Compensation Board of Review, No. B-222721, dated September 29, 1983, is reversed.

Judge Williams, Jr., did not participate in the decision in this case.

Disposition

Reversed.


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