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SABLE UNEMPLOYMENT COMPENSATION CASE. (01/16/62)

January 16, 1962

SABLE UNEMPLOYMENT COMPENSATION CASE.


Appeal, No. 304, April T., 1961, by claimant, from decision of Unemployment Compensation Board of Review, No. B-63618-B, in re claim of Andrew W. Sable. Decision affirmed.

COUNSEL

Everett E. Utterback, with him Utterback & Brown, for appellant.

Sydney Reuben, Assistant Attorney General, with him David Stahl, Attorney General, for Unemployment Compensation Board of Review, appellee.

Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).

Author: Wright

[ 197 Pa. Super. Page 179]

OPINION BY WRIGHT, J.

Andrew W. Sable was last employed as a stockyard craneman by the United States Steel Corporation at Duquesne, Pennsylvania. His final day of work was June 29, 1960. His application for benefits was disallowed by the Board of Review on the ground that he had voluntarily terminated his employment without cause of a necessitous and compelling nature, and that he was tnerefore disqualified under the provisions of Section 402(b) of the Unemployment Compensation Law. Act of December 5, 1936, P.L. (1937) 2897, 43 P.S. 751 et seq. This appeal followed.

Two questions are raised on this appeal, one of factual interpretation and one of procedure. The first arises out of claimant's contentions (1) that his retirement was involuntary because he was "pressed" to retire, and merely did not resist "being processed for retirement"; and (2) that his retirement, even if voluntary, was with good cause because the employer "used tactics designated to deceive the employ into retiring."

The record discloses that the employer does not have a compulsory retirement plan. However, an employe may voluntarily retire at age sixty-fave. In order to continue working thereafter, the employ must pass a

[ 197 Pa. Super. Page 180]

    semi-annual physical examination. Claimant reached age sixty-five on November 8, 1955, and chose not to retire. He passed physical examinations semi-annually thereafter, and remained on the job for more than four years. He was fully aware that he could continue working so long as he was physically qualified.

There is a dispute as to what occurred at the time of the last physical examination. Claimant testified that both he and his foreman had been subjected to criticism by younger employes because claimant had continued to work; that the foreman suggested that claimant retire; that he asked the foreman whether he would be eligible for unemployment compensation and was informed that the foreman would see about it; and that he heard nothing more until he received word that he was being retired. On the other hand, the foreman testified that, when the subject of retirement was last discussed, claimant stated that he had decided to "take his pension" provided he could work "solid through June" and receive his two weeks vacation pay in July; that this was arranged; and that there was no talk about unemployment compensation.

It is conceded that claimant did retire on June 29, 1960, and that continued employment was available. The Board ultimately found as a fact that claimant "wanted to retire this time provided he could work through June, 1960", which he was permitted to do. There was no finding of any pressure or deceit by the employer. We are of the opinion that the Board's pivotal finding was supported by the evidence, and that it was justified in concluding that claimant's retirement was voluntary. See Adams Unemployment Compensation Case, 186 Pa. Superior Ct. 191, 140 A.2d 457; kaman Unemployment Compensation Case, 192 Pa. ...


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