Kelly v. Commonwealth

Dissenting Opinion by

Judge Doyle:

I find I must dissent because I do not believe that Section 804(b)(1) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., PL. 2897 (1937), as amended, 43 PS. §874(b)(l) (Law), is applicable to the factual situation presented to us in this *474very unique case. Section 804(b)(1) gives only to the Commonwealth the right of recoupment against the Claimant, not the other way around. Since the Commonwealth has received all that it is entitled to, from Ohio, there is no recoupment possible. Had the state of Ohio sent the $3,555.00 to the Claimant, the result might be different; but, in any event, the provision with regard to the one-third maximum recoupment applies only to “such future compensation” that Claimant would receive from some future claim. The intent of the provision is clearly to assure the Claimant at least two-thirds of his future periodic benefit payments. I do not believe it has anything to do with a division of a lump sum payment from another jurisdiction. Further, if this section of the Law was made to apply to this unique situation, I believe it would be more properly controlled by the last sentence of Section 804(b)(1), “[n]o provision of this subsection shall be construed to prevent or prohibit the voluntary repayment of compensation by such person or the maintenance of records of overpayments by the Department.”