J. H. Oliver, Franklin B. Gelder, Scranton, for appellant.
Richard H. Wagner, Associate Counsel, Harrisburg, William L. Hammond, Sp. Deputy Atty. Gen., T. McKeen Chidsey, Atty. Gen., for appellee.
Samuel Krimsly, Pittsburgh, for intervenors.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross and Arnold, JJ.
[ 167 Pa. Super. Page 258]
Keystone Mining Company, employer, appealed from a decision of the Unemployment Compensation Board of Review awarding compensation to Robert Pendleton (No. 29) and Alexander D. Alexander (No. 30). The separate appeals involved identical questions of law; were argued together; and will be decided in one opinion.
The records will be remitted for further hearing, and accordingly we state the board's version of the facts without committing this Court to its approval. Claimants had been employed in the bituminous coal industry for most of their lives, and were in appellant's employ for over 20 years. Pendleton is 68 years of age and Alexander is 64. Both left their employment on December 31, 1948, because their work was 'too heavy.' Pendleton testified that the heavy work had aggravated his hernia; Alexander that the wet and damp conditions prevailing in the mines had injured his health. They had requested lighter work but none was available. The board allowed compensation, holding that the effect of the work upon claimants' health constituted a good cause for leaving their employment, within the meaning of the Unemployment Compensation Law, § 402(b), 43 P.S. § 802(b). We have held that the physical condition of an employe is an important factor in determining the existence of good cause. In re Filchock Unemployment Compensation Case, 164 Pa. Super. 43, 63 A.2d 355; In re Miller Unemployment Compensation Case, 158 Pa. Super. 570, 45 A.2d 908.
The board also decided that claimants were 'able to work and available for suitable work' within the meaning of § 401(d), 43 P.S. § 801, although there were no immediate opportunities for securing lighter work for which they were capable in the vicinity in which they lived. See In re Sturdevant Unemployment Compensation
[ 167 Pa. Super. Page 259]
Case, 158 Pa. Super. 548, 45 A.2d 898. The evidence upon which this finding was rested will not now be reviewed.
The undisputed testimony is that immediately after ceasing work both claimants applied for pensions to which they were entitled as members of the United Mine Workers of America, and Pendleton also applied for old age assistance under the Social Security Act of Congress, 42 U.S.C.A. § 301 et seq.*fn1 This is the pinch of the case, and yet the board gave it no consideration. It found no facts in respect to it, and its decision totally ignored the question. Appellant applied for a rehearing upon this ground, inter alia, but the board refused it out-of-hand, an administrative practice not to be commended, since the board had previously decided similar cases against other claimants.*fn2
The effect of acceptance of industrial pensions upon an employe's claim for unemployment compensation has not hitherto occupied the attention of this Court,*fn3 and our research has not uncovered appellate expressions elsewhere on the point. On August 1, 1949 ...