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FRANK KAISER v. COMMONWEALTH PENNSYLVANIA (04/02/87)

decided: April 2, 1987.

FRANK KAISER, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeal from the Order of the Unemployment Compensation Board of Review, in case of In Re: Claim of Frank Kaiser, No. B-241825.

COUNSEL

John Stember, for petitioner.

Jonathan Zorach, Associate Counsel, with him, Clifford F. Blaze, Deputy Chief Counsel, for respondent.

Judges MacPhail, Doyle and Barry, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 105 Pa. Commw. Page 153]

Frank Kaiser (Claimant) petitions for our review of an order of the Unemployment Compensation Board of Review (Board) which affirmed a referee's decision to deny Claimant's application for Federal Supplemental Compensation (FSC). For the reasons which follow, we vacate and remand.

It is undisputed that Claimant was eligible for and began receiving unemployment compensation benefits on September 23, 1984, following his lay-off from United States Steel Corporation (Employer). Claimant exhausted his state unemployment benefits after twenty-seven weeks with the week ending April 6, 1985. His application for FSC, filed immediately thereafter, was rejected as being one week beyond the statutory deadline for such benefits.*fn1

Claimant's challenge in the matter sub judice is premised on his contention that his state unemployment benefits should have been exhausted during his twenty-sixth week of benefits and that had his benefits been so exhausted, he would have met the filing deadline for FSC benefits. Thus, it is the state benefits received during Claimant's twenty-seventh claim week which lie at the heart of this case. Those benefits, which amounted to approximately $105.00, remained available for payment to Claimant due to an earlier deduction by the

[ 105 Pa. Commw. Page 154]

    unemployment compensation authorities from Claimant's benefits for the claim week ending January 5, 1985, of holiday pay which Claimant received from Employer for New Year's Day, 1985. Absent this deduction of holiday pay, Claimant's state benefits would have been exhausted with the week ending March 30, 1985, thus enabling him to meet the application deadline for FSC benefits. In the instant appeal, Claimant argues that the holiday pay was improperly deducted from his January benefits.

The Board has declined to provide any argument regarding the propriety of the holiday pay deduction. Instead, the Board contends that Claimant is attempting to collaterally attack a separate determination by the Office of Employment Security (OES) regarding the deductibility of Claimant's holiday pay. The Board contends that the holiday pay was determined to be deductible by OES in a decision mailed on April 8, 1985, from which Claimant filed no appeal. That decision is not a part of the certified record in this case.*fn2 Claimant contends that the issue of collateral estoppel may not be addressed by this Court since it has been raised for the first time on appeal.

We observe that the issue of holiday pay was clearly raised by Claimant's counsel in his brief filed with the Board. The Board, however, did not address the issue of holiday pay in its ruling, and also made no mention of any prior OES determination which would have barred its consideration of that issue. In fact, the matter of collateral estoppel was ...


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