Appeal from the Order of the Unemployment Compensation Board of Review in the case of Jimmie Lee Smith, No. B-223928.
Edith Benson, with her, Nancy S. Thomson, for petitioner.
Barry M. Hartman, with him, Jonathan Zorach and Michael D. Alsher, Associate Counsels, and Charles G. Hasson, Acting Deputy Chief Counsel, for respondent.
President Judge Crumlish, Jr. and Judges Rogers, Craig, MacPhail, Doyle, Colins and Palladino. Opinion by Judge Craig.
[ 92 Pa. Commw. Page 513]
This unemployment compensation appeal, pursuant to argument specially ordered before the court en banc, requires that the court clarify the principles which govern this question:
When an unemployment compensation claimant has failed to reveal to the compensation authorities his earnings from part-time employment during the period for which he seeks compensation, on what basis and to what extent does that failure affect his entitlement to compensation and his liability to repay compensation already received?
Possible inconsistencies between Schaeffer v. Unemployment Compensation Board of Review, 77 Pa. Commonwealth Ct. 634, 467 A.2d 67 (1983), and Rohrbach v. Unemployment Compensation Board of Review, 69 Pa. Commonwealth Ct. 172, 450 A.2d 323 (1982), as noted in Colello v. Unemployment Compensation Board of Review, 89 Pa. Commonwealth Ct. 354, 361, n. 11, 492 A.2d 769, 772, n. 11 (1985), have prompted our concern.
Claimant Jimmie Lee Smith has appealed from an order of the Unemployment Compensation Board of Review affirming a referee's decision which found him ineligible for benefits under section 401(c) of the Unemployment Compensation Law,*fn1 and ordered recoupment of a fault overpayment in the amount of $2,773 under section 804(a) of that law, 43 P.S. § 874(a).
After finding that the claimant had a valid separation on November 11, 1982 from his former employment with Midland-Ross Corporation because of lack of work, the referee found that:
[ 92 Pa. Commw. Page 5143]
. As a member of the Army Reserves, the claimant is required to serve one weekend per month and two weeks of full-time training each year.
4. During the period at issue, the claimant attended weekend meetings for the Army Reserves and earned wages at the same time he was filing claims for benefits and he failed to report these earnings to the local office when filing those claims.
Because the referee concluded that the claimant's failure to report his Army Reserve earnings was unjustified, so that the compensation paid him should be regarded as a fault overpayment as to those particular weeks in which he pursued his military activity, the threshold problem is whether substantial evidence supports the findings of fact.
The claimant did not indicate his earnings from his reserve activity in his written application. The claimant testified that he orally mentioned his reserve affiliation at the time of his initial application and also told the authorities about his summer camp duty which would cause him to miss reporting for two weeks. The claimant also has relied on his tacit belief that he did not need to report those earnings because the monthly reserve ...