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July 9, 1962


Appeal, No. 56, Oct. T., 1962, by claimant, from decision of Unemployment Compensation Board of Review, No. B-9-M-2187, in re claim of Victor Urban. Decision affirmed.


Donald Grody, with him Goldstein and Barkan, for claimant, appellant.

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

James Thomas McDermott, with him McDermott, Quinn & Higgins, for employer, intervening appellee.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Watkins

[ 198 Pa. Super. Page 520]


In this unemployment compensation case the Unemployment Compensation Board of Review denied benefits under § 402(b)(1) of the Unemployment Compensation Law, 42 PS § 802(b)(1), because the claimant voluntarily terminated his employment without cause of a necessitous and compelling reason, in that he voluntarily retired to accept a pension.

The claimant, Victor Urban, was last employed as a debit agent for the Home Life Insurance Company of America on October 31, 1957. On July 1, 1957 he was 67 years of age and was eligible for retirement under a retirement plan in effect between him and the company.

[ 198 Pa. Super. Page 521]

He continued working and received his first retirement check on November 1, 1957. The company claims he requested retirement as of that time and could have continued in his employment with the company's consent as he did since July 1, 1957. He accepted the check and never questioned his employer concerning work but denies that he requested retirement. Based on this contention he filed for unemployment compensation benefits on the ground that his separation was a result of "involuntary retirement".

On December 30, 1957, the Bureau of Employment Security had denied benefits to the claimant on the ground that he was excluded from benefits by not being in covered employment under § 4(1)(4)(17) of the law, 43 PS § 753. This was affirmed by the referee. However, the Unemployment Compensation Board of Review reversed the referee and held that the claimant was a general employee and not an independent contractor.

The company, thereupon, appealed to this Court, and upon stipulation filed on August 19, 1960, we ordered the record remanded to the board "for the purpose of taking additional testimony and for further study and consideration in the light thereof, and the issuing of a new decision consistent therewith." Complying with that order the board, on October 11, 1960, again remanded the case to a referee for further hearing "To receive testimony on claimant's separation, availability and any other relevant testimony." Several more hearings were held, and finally, on November 3, 1961, the board vacated its decision of May 19, 1960, and made different findings, the most important of which was that claimant had been retired at his own request rather than by the company, and for that reason was ineligible for benefits.

At the outset, we should point out that the limitation of review by this Court, as fixed by the law, is of

[ 198 Pa. Super. Page 522]

    particular significance in this case. We cannot substitute what we might possibly have found as facts or drawn as inferences for those found and drawn by the fact finders. The claimant has the burden of proof that his separation was not voluntary. Smith Unemployment Compensation Case, 167 Pa. Superior Ct. 242, 74 A.2d 523 (1950).

The board is the arbiter of the facts and its findings are conclusive and must be sustained if the record contains competent and substantial evidence to support them. The record must be reviewed in the light most favorable to the party for whom the board found, giving that party the benefit of every inference which can be logically and reasonably drawn from the competent evidence. Sledziowski Unemployment Compensation Case, 195 Pa Superior Ct. 337, 171 A.2d 546 (1961), and it was, of course, the duty of the board to pass upon the credibility of the witnesses and the weight of their testimony. As the decision in this case was against the claimant, this Court must determine whether the findings of fact are consistent with each other and with its conclusions of law and its order, and whether such findings of fact can be sustained without a capricious disregard of the competent evidence. Weckerle Unemployment Compensation Case, 191 Pa. Superior Ct. 232, 156 A.2d 604 (1959).

The question of covered employment which occupied the compensation authorities originally has disappeared from this case and is moot, if the board's determination that ...

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