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COMMONWEALTH PENNSYLVANIA v. COMMONWEALTH PENNSYLVANIA (01/08/88)

decided: January 8, 1988.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF LABOR AND INDUSTRY, OFFICE OF EMPLOYMENT SECURITY, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT. ALLEN W. FRITCHMAN, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeals from the Orders of the Unemployment Compensation Board of Review, in cases of In Re: Claims of Allen W. Fritchman, No. B-243706-B and No. B-243707-B, dated January 29, 1986.

COUNSEL

Debra L. Mazen, Assistant Counsel, with her, Margaret D. Blough, Deputy Chief Counsel, for petitioner, Department of Labor and Industry, Office of Employment Security.

William H. Agnew, for petitioner, Allen W. Fritchman.

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

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

Author: Macphail

[ 112 Pa. Commw. Page 396]

Allen W. Fritchman (Claimant) petitions for our review of an order of the Unemployment Compensation Board of Review (Board) which affirmed a referee's order denying Claimant benefits and assessing a non-fault overpayment. The Office of Employment Security (OES) has also petitioned for our review of the Board's decision insofar as it affirmed a referee's decision to modify OES' assessment of a fault overpayment to a non-fault overpayment. These appeals were consolidated, sua sponte, for review before this Court. For the reasons which follow, we affirm the Board's determination insofar as it denies Claimant benefits for compensable weeks ending November 12, 1983 through September 8, 1984, and we reverse the Board's order insofar as it imposes a non-fault overpayment and reinstate OES' determination of a fault overpayment.

Our review of the record reveals that Claimant had been employed by Taylor-Wharton for approximately 22 years performing skilled and semi-skilled work. On August 31, 1983, Claimant went on strike from Taylor-Wharton and since he was not receiving strike benefits, Claimant took a full-time, temporary, unskilled position with Peoples Coal in mid-September, 1983. Claimant's position at Peoples Coal was understood by both Claimant and that employer to be temporary, lasting only until the strike at Taylor-Wharton ended.*fn1 On November

[ 112 Pa. Commw. Page 3972]

, 1983, however, Claimant learned that Taylor-Wharton was to close permanently and that he might be eligible for unemployment benefits. The next day, Claimant informed his temporary employer, Peoples Coal, that Taylor-Wharton was closing and that he, therefore, found it necessary to quit Peoples Coal to look for work commensurate with his position with Taylor-Wharton.*fn2

On November 4, 1983, Claimant applied for and received unemployment compensation benefits indicating on his application for benefits his employment with Taylor-Wharton, but not his most recent employment with Peoples Coal.*fn3 After receiving compensation for approximately 44 weeks, Claimant obtained employment with a painter which lasted approximately four months and then Claimant again, on January 3, 1985, applied for unemployment benefits. This time, Claimant did indicate on his application for benefits his work for Peoples Coal and he again received benefits. Upon learning of Claimant's employment with Peoples Coal, however, OES determined that Claimant was not eligible for benefits for the 44 week period during which he had already received benefits, specifically, claim weeks ending November 12, 1983 through September 8, 1984 because he had voluntarily quit his position with Peoples Coal without good cause.*fn4 OES also assessed a

[ 112 Pa. Commw. Page 398]

    fault overpayment.*fn5 On appeal, a referee affirmed OES' decision in part but modified OES' determination of a fault overpayment to a non-fault overpayment. The Board affirmed the ...


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