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decided: January 14, 1986.


Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Forrest M. Swaydis, No. B-223815.


Joanna Nezovich Reynolds, Assistant Counsel, for petitioner.

Samuel H. Lewis, Associate Counsel, with him, Michael D. Alsher, Associate Counsel, and Charles G. Hasson, Acting Deputy Chief Counsel, for respondent.

President Judge Crumlish, Jr., Judge Colins, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Colins.

Author: Colins

[ 94 Pa. Commw. Page 190]

This case presents the issue of whether a claimant is eligible for unemployment compensation under the provisions of Section 401(f) of the Pennsylvania Unemployment Compensation Law (Law)*fn1 when, after being initially terminated for willful misconduct, he was reinstated in his employment by order of this

[ 94 Pa. Commw. Page 191]

Court, and said order was subsequently reversed by the Supreme Court.*fn2

Forrest M. Swaydis (Claimant) was last employed by the Pennsylvania State Police (employer). On

[ 94 Pa. Commw. Page 192]

March 4, 1981, the Claimant was initially dismissed by the employer following a court-martial for various infractions of the employer's rules of conduct, including, inter alia, writing bad checks and opening bank accounts under a fictitious name. The Claimant took two actions as a result of this dismissal: (1) he applied for unemployment benefits; and (2) he appealed his court-martial to this Court. The Office of Employment Security (OES) ruled that the Claimant's conduct constituted willful misconduct as contemplated by Section 402(e) of the Law,*fn3 and, therefore, denied him benefits. This decision was never appealed.

However, in reviewing the Claimant's court-martial, this Court found that the court-martial was improperly convened; therefore, we ordered the Claimant reinstated to his position.*fn4 The Claimant was so reinstated on April 12, 1983, and he worked until May 24, 1983, at which time he was again dismissed. This second dismissal was a result of a stay of the reinstatement order by the Pennsylvania Supreme Court, which subsequently reversed the Commonwealth Court's order of reinstatement.*fn5 It is significant to note that the Claimant also worked for the Martz bus company and for Trailways bus company in the interim between his separation in 1981 and his reinstatement in 1983.

The Claimant applied for benefits after his second separation, and benefits were again denied by the OES. The Claimant appealed, and a referee reversed the OES determination and granted benefits. The Unemployment Compensation Board of Review affirmed, and the employer appealed to this Court.

[ 94 Pa. Commw. Page 193]

One of employer's contentions is that the Claimant is collaterally estopped from challenging the 1981 OES determination of ineligibility, and that, therefore, Claimant cannot now be found eligible for benefits. The OES determination of 1981 was never appealed, and unappealed OES determinations are not considered conclusive or binding, and the principle of collateral estoppel would not apply. Oravec Unemployment Compensation Case, 171 Pa. Superior Ct. 491, 90 A.2d 269 (1952). However, we will assume, arguendo, that the OES determination of 1981 was binding and that Claimant's actions at that time conclusively constituted willful misconduct. Thus, we may examine the effect of this determination on the subsequent grant of benefits.

The Law provides, via Section 401(f), for a purging of disqualifications such as that imposed by the OES determination of 1981:

Compensation shall be payable to any employee who is or becomes unemployed, and who --

(f) Has earned, subsequent to his separation from work under circumstances which are disqualifying under the provisions of subsections 402(b), 402(e) and 402(h) of the act, remuneration for services in an amount equal to or in excess of six (6) times his weekly benefit rate. . . .*fn6

As previously noted, the Claimant worked for two other employers subsequent to his 1981 separation. During this time he earned six (6) times his weekly benefit rate, thereby purging any disqualification imposed by the OES determination of 1981. Therefore,

[ 94 Pa. Commw. Page 194]

    even if Claimant's prior disqualification was binding, it would be irrelevant to these proceedings.

In focusing upon the Claimant's second separation from this employer, it is clear that no willful misconduct was proven or alleged. The employer dismissed the Claimant solely because of his 1981 actions. Having statutorily purged the 1981 disqualification, Claimant's actions in 1981 cannot be considered willful misconduct in 1983, the time of his second separation. A different interpretation could be reached only by ignoring the express language of the statute, and we are specifically prohibited from such a course of action. See Section 1921(b) of the Statutory Construction Act of 1972, 1 Pa. C.S. ยง 1921(b).

Therefore, we affirm the order of the Board.


And Now, January 14, 1986, the order of the Unemployment Compensation Board of Review, No. B-223815, dated October 31, 1983, is affirmed.



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