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GIANFELICE UNEMPLOYMENT COMPENSATION CASE. WARNER COMPANY v. UNEMPLOYMENT COMPENSATION BOARD REVIEW. (04/16/58)

April 16, 1958

GIANFELICE UNEMPLOYMENT COMPENSATION CASE. WARNER COMPANY, APPELLANT,
v.
UNEMPLOYMENT COMPENSATION BOARD OF REVIEW.



Appeal, No. 43, March T., 1958, by employer, from decision of Unemployment Compensation Board of Review, June 7, 1957, No. B-44656, in re claim of Antonio Gianfelice. Decision reversed; reargument refused June 18, 1958. WRIGHT, WOODSIDE, ERVIN,/ and WATKINS, JJ. (HIRT and GUNTHER, JJ., absent).

COUNSEL

Roy Wilkinson, Jr., with him Love & Wilkinson, for employer, appellant.

Sydney Renben, Assistant Attorney General, with him Thomas D. McBride, Attorney General, for Unemployment Compensation Board, appellee.

Bernard N. Katz, with him Meranze and Katz, for claimant, intervenor-appellee.

Author: Wright

[ 186 Pa. Super. Page 187]

OPINION BY WRIGHT, J.

The claim of Antonio Gianfelice for unemployment compensation was denied by the Referee upon the ground that the claimant had voluntarily terminated his employment and was therefore ineligible for benefits under Section 402(b) of the Unemployment Compensation Law. Act of 1936, P.L. [1937] 2897, 402(b), 43 P.S. 802(b). The Board of Review reversed the decision of the Referee and allowed the claim. This appeal by the employer followed.

Claimant was a member of Local 92 of the United Cement, Lime and Gypsum Workers international Union. The collective bargaining agreement between the union and Warner Company, claimant's employer, provided that the retirement of employes should be

[ 186 Pa. Super. Page 188]

    governed by the terms of an employe retirement plan attached to and made a part of the agreement. The pertinent portion of this plan reads as follows: "Section IV. Retirement and Qualifications for Benefits. 1. Each participant who, while an employee of the Company has attained age 65 on July 1, 1950, or attains age 65 thereafter, shall be eligible to retire on July 1, 1950, or his attainment of age 65, whichever is later, and, if he has completed 10 or more years of continuous service, shall be eligible for retirement income benefits computed in accordance with Section V hereof. 2. A participant may remain in service of the Company after his attainment of age 68 or July 1, 1952, whichever last occurs, only with the consent of the Company and upon his retirement thereafter, if otherwise qualified, he shall be entitled to receive retirement income benefits".

Claimant had been continuously employed by Warner Company since January 1, 1918. According to the terms of Section V of the employe retirement plan, the amount of income is calculated on the basis of retirement as of the first day of the month next following the attainment of age 68. Claimant attained age 68 on January 14, 1956. He desired to remain in service but the Company would not consent, so that claimant's last day of work was January 31, 1956. It was stipulated that claimant's services were terminated under Section IV. 2. of the employe retirement plan.

The employer contends that claimant's retirement constituted a voluntary quit, whereas claimant contends that his retirement was involuntary. It is claimant's position that, since the employer had "the discretion as to whether or not to continue claimant in his employment" the agreement does not compel retirement at age 68 but ...


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