dissenting.
The majority opinion in this case deals with the matter of tenure in a public position and susceptibility to being discharged, when the issue is something entirely different — the entitlement to unemployment compensation after dismissal.
In this case the claimant is not at all questioning whether the Attorney General had the right to discharge, but is only seeking unemployment compensation. Yet, the majority opinion would overrule this court’s previous decision in Gahres v. Unemployment Compensation Board of Review, 61 Pa.Commonwealth Ct. 114, 433 A.2d 152 (1981), an unemployment compensation case, by relying solely upon United States Supreme Court cases which deal with the rights of tenure and do not relate to unemployment compensation at all. Rutan v. Republican Party, 497 U.S. 62, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990); Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980); Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976).
None of the authority cited, other than Gahres, relates to the issue at hand, entitlement to unemployment compensation.
In Gahres this court did not hold that mere labeling of a position as “a major tenured policymaking or advisory position” was sufficient. Following the statute, this court required any such designation to be “supported by law” so that the designation was “under or pursuant to the laws of this Commonwealth”. Section 1002(11) of the Unemployment Compensation Law, Act of December 5,1936, Second Ex.Sess.P.L. (1937), 2897 as amended, 43 P.S. § 892(11). In accordance with that principle, our Gahres decision reversed a denial of unemployment compensation and remanded for computation of benefits because the requisite legal basis could not be found in laws of the Commonwealth.
*1299In this case, to remand for the Unemployment Compensation Board of Review, to make an after-the-fact factual study of whether or not the claimant has been doing actual policymaking or advisory functions, goes contrary to the words of the statute which makes the exclusion from unemployment compensation expressly dependent upon the position being “designated as ... a major non-tenured policymaking advisory position.” (Emphasis added.) The employees coming into such positions are entitled to know, from the existence of an express designation, in advance that they are entering upon a position which does not carry entitlement to unemployment compensation. The law places the power of designation, not in any determination of the Unemployment Compensation Board of Review, but in the state officer or department which is the employer, and that officer or department must, under Gahres, have a lawful basis for making the designation.
Because the Unemployment Compensation Law places the exclusion from compensation upon a designation under or pursuant to law, the question in these cases is always a question of law for review by this court, not a question of fact to be left to the Unemployment Compensation Board of Review.