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EDWARD J. KELLY v. COMMONWEALTH PENNSYLVANIA (10/27/87)

decided: October 27, 1987.

EDWARD J. KELLY, JR., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeal from the Orders of the Unemployment Compensation Board of Review in the cases of In Re: Claim of Edward J. Kelly, Jr., Nos. B-244811 and B-244812.

COUNSEL

Donald E. Williams, for petitioner.

Charles D. Donahue, Assistant 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 Barry. Dissenting Opinion by Judge Doyle.

Author: Barry

[ 110 Pa. Commw. Page 468]

Edward J. Kelly, Jr., the claimant, appeals from two orders of the Unemployment Compensation Board of Review (Board) which affirmed decisions of the referee finding that the claimant was liable for a non-fault recoupment under Section 804(b) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. 2897 (1937), as amended, 43 P.S. § 874(b) (Supp. 1986).

In 1983, the claimant exhausted his regular benefits in Pennsylvania. He thereafter applied for, and received, extended benefits for the compensable week ending July 16, 1983, through the compensable week

[ 110 Pa. Commw. Page 469]

    ending August 6, 1983, in amounts totaling $780.00. He then received Federal Supplemental Compensation until November 26, 1983, in amounts totaling $2,775.00. During a visit to the New Castle office of the Office of Employment Security (OES) he was told that he might be eligible for benefits in Ohio because he had been employed there. In response to this suggestion he filed an application for benefits in Ohio which was initially denied. Claimant appealed this decision which was eventually reversed sometime in 1985 and claimant was granted benefits at a rate of $147.00/week.

Shortly after the Ohio authorities determined that claimant had been eligible to receive benefits during the period he had been receiving both Extended Benefits and Federal Supplemental Compensation, the OES in New Castle, in August of 1985, issued a determination that claimant was liable for a non-fault recoupment. The claimant appealed to the referee who found that, while claimant had received these benefits through no fault of his own and, indeed, because of the advice of the OES, he was nonetheless liable for a non-fault recoupment for amounts received in Extended Benefits and Federal Supplemental Compensation. The Board affirmed and this appeal followed.

On this appeal, claimant is represented by an attorney for the first time during these entire proceedings. He does not challenge the legal conclusion that he was liable for a non-fault recoupment, as the various statutes are clear that one may receive neither Extended Benefits nor Federal Supplemental Compensation during a period when the claimant is eligible for regular benefits in Pennsylvania or any other state. Here, claimant received such benefits during a period when he was entitled to regular benefits from Ohio. Rather, all that he challenges is the method of recoupment, wherein the State of Ohio repaid the entire $3,555.00 to which

[ 110 Pa. Commw. Page 470]

    claimant was entitled from the Ohio fund in one lump sum to the Unemployment Compensation Fund of this Commonwealth. Claimant contends that if Ohio were to pay his benefits in one lump ...


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