Appealed From No. B-351763. State Agency Unemployment Compensation Board of Review.
Before: Honorable Rochelle S. Friedman, Judge, Honorable Bonnie Brigance Leadbetter, Judge, Honorable Charles A. Lord, Senior Judge. Opinion BY Judge Leadbetter
The opinion of the court was delivered by: Leadbetter
OPINION BY JUDGE LEADBETTER
Michael Conroy (Claimant) appeals the order of the Unemployment Compensation Board of Review (Board) denying him unemployment compensation. We conclude that Claimant is eligible for compensation and reverse.
In November of 1993, Claimant was hired by the Borough of Forest Hills (Intervenor or Borough) to act as Police Chief for the Borough. As part of his duties as Police Chief, Claimant drafted the Manual of Policy and Procedures for the Borough Police Department (Manual). This Manual set out the duties and responsibilities of all members of the Police Department and was adopted by the Borough Counsel. According to the Manual, the Police Chief has a policy-making role:
The Chief shall consult with the Mayor concerning the plans and policies to be observed in police operations. . . .
The Chief shall have the power and authority to prescribe, promulgate, and enforce policies and regulations for the government of the Police Department which, however, shall not be inconsistent with Federal, state or Borough laws and ordinances.
The Chief shall formulate all policy relating to the Police Department, and shall endeavor to have all policy statements published in the policy and procedures manual.
The Board found that, "Claimant was aware he worked at the will of the Mayor . . . [and that he] performed the required policy-making and advisory duties of the Chief of Police while employed by the Boro." Conroy v. Boro of Forest Hills (No. B-96-6-S-319, filed August 13, 1996), slip op. at 2. In February of 1996, Claimant was terminated from employment with the Borough. *fn1 He filed for unemployment compensation and was denied benefits by the Pittsburgh Job Center South (Job Center). The Referee reversed the Job Center order and granted benefits to Claimant. The Board then reversed the order of the Referee, and it is this denial of benefits that Claimant now appeals.
Section 1201(b)(9) of the Unemployment Compensation Law (Law) *fn2 provides that:
Individuals serving in positions which, under or pursuant to the laws of this Commonwealth, are designated as (i) a major nontenured policymaking or advisory position . . .
may not receive unemployment compensation. Based upon the duty description for the Police Chief contained in the Manual, the Board found that Claimant had been officially designated as a non-tenured, policy-making or advisory position and, thus, was not entitled to unemployment compensation. Id. at 3.
Claimant argues that, as Police Chief, he had no actual policy-making powers, so he should not be excepted from entitlement to unemployment compensation. In making this argument, Claimant relies upon this Court's opinion in Zerbe v. Unemployment Compensation Bd. of Review, 167 Pa. Commw. 602, 648 A.2d 1295 (Pa. Commw. 1994), rev'd, Pa. , 681 A.2d 740 (1996). However, in Zerbe v. Unemployment Compensation Bd. of Review, Pa. , 681 A.2d 740 ...