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STEPHEN J. KAN v. COMMONWEALTH PENNSYLVANIA (09/08/87)

decided: September 8, 1987.

STEPHEN J. KAN, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeal from the Order of the Unemployment Compensation Appeal Board in the case of In Re: Claim of Stephen J. Kan, No. B-239420.

COUNSEL

Daniel J. Hartle, for petitioner.

Charles D. Donahue, Assistant Counsel, with him, Clifford F. Blaze, Deputy Chief Counsel, for respondent.

Judges Colins and Palladino, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Palladino.

Author: Palladino

[ 109 Pa. Commw. Page 185]

Stephen J. Kan (Petitioner) appeals an order of the Unemployment Compensation Board of Review which affirmed a referee's order reducing his unemployment benefits by the entire amount of his military retirement benefits. We reverse and remand for recalculation of Petitioner's weekly unemployment compensation benefits in accordance with the following opinion.

Petitioner was honorably discharged from the United States Navy after 22 years of service on May 13, 1977. As retirement benefits for his military duty, Petitioner was entitled to receive $650.36 per month. On June 22, 1984, Petitioner and his wife were divorced. Incorporated into the divorce decree was a voluntary settlement agreement in which Petitioner and his wife divided their marital property. As part of this settlement Petitioner's wife received 50% of Petitioner's military retirement benefit. Upon notification of the divorce and agreement, the Navy Family Allowance Activity*fn1 informed Petitioner that pursuant to the Uniformed Services Former Spouses' Protection Act, 71 U.S.C. ยง 1408, 50% of his retirement benefits ($325.18 per month) would be paid directly to his former wife beginning in December, 1984.

Petitioner applied for unemployment benefits in December, 1984. In computing his benefits the Office of Employment Security (OES) adjusted his unemployment

[ 109 Pa. Commw. Page 186]

    compensation weekly benefits to account for the entire amount of his military pension pursuant to section 404(d)(iii) of the Unemployment Compensation Law (Law).*fn2 Petitioner's adjusted weekly rate was $19.00 effective December 16, 1984.

Petitioner appealed this determination, contending that the amount of the pension which his former wife received should not have been included in adjusting his benefits. The referee concluded that the amount of the pension paid to Petitioner's former wife was "debt payment" and "no different than a payment to a utility company or a loan payment" and affirmed OES's determination. Petitioner appealed this decision to the Board, which affirmed the referee.

Petitioner filed a petition for review with this court. The issue presented to us is whether it was an error of law for Petitioner's unemployment compensation benefits to be reduced by the amount of the military pension received by Petitioner's former wife as well as by the amount he receives. This is an issue of first impression in ...


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