Opinion by
Troy C. Hayes appeals from the decision and order of the Unemployment Compensation Board of Review denying benefits and assessing a non-fault overpayment.
Hayes does not contest the Board’s factual findings ; furthermore, we find no significant conflict between the findings and the record evidence. Those findings and the record reflect that Hayes was employed as a grinder for a manufacturing company for eight years. On October 24, 1981, he received an indefinite lay-off; he subsequently applied for and was granted unemployment compensation benefits. In December of 1981, while Hayes was still on lay-off, the employer was notified by its medical insurance carrier that inflated drug prescription claims had been submitted under Hayes’ coverage. The employer made an independent investigation and determined that during a period of approximately three years, false claims in an amount in excess of $600.00 had been made on Hayes’ medical coverage. When confronted with the results of the investigation, Hayes asserted that he was unaware of the false claims, and that they were
Based on its finding that “[falsified claims had been submitted by the claimant or on his behalf . . .” (emphasis added), the Board determined that Hayes was ineligible for benefits pursuant to Section 402(e) of the Unemployment Compensation Law
Coleman v. Unemployment Compensation Board of Review, 46 Pa. Commonwealth Ct. 295, 406 A.2d 259 (1979) is controlling on this issue. In Coleman, a claimant was laid off from his job under circumstances which qualified him for benefits. Subsequent to his lay-off the claimant engaged in conduct which constituted willful misconduct by assaulting the employer’s personnel manager. Despite this misconduct, we determined the claimant eligible for benefits until such time as he would have been recalled but for the incident for which he was discharged. We stated that “[p]rior to a time when Coleman would have been recalled from lay-off, his unemployment was due to having been laid off. ...” 46 Pa. Commonwealth Ct. at 296, 406 A.2d at 260. Similarly, Hayes’ unemployment was due to lay-off until such time as he would have been recalled had it not been for his suspension and discharge.
[P]rior to July 16 the company was not able to furnish employment to the claimant as a result of a slackening of work at the establishment, and this was so irrespective of whether the claimant was on the active or the retired list. Thus the claimant could not become unemployed as a result of his own voluntary act until such time as his retirement was the proximate cause of his unemployment — the uncontroverted testimony indicates that July 16 was the “time,” for on that date he would have been recalled to work had he not retired. 175 Pa. Superior Ct. at 596, 106 A.2d at 689 (Emphasis in original).
By parity of logic, the employer in this case had no employment for Hayes, regardless of whether his suspension and discharge would have disqualified him for recall. This fact would not have been altered had the incidents for which Hayes was discharged occurred after, as opposed to before his lay-off.
Accordingly, the decision and order of the Board is reversed.
Order
And Now, this 16th day of November, 1984, the decision and order of the Unemployment Compensation Board of Review at Decision No. B208660 is reversed.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e). Under this section, a claimant is ineligible for benefits for any week in wbicb Ms unemployment is due to willful misconduct connected with Ms work.
