Appeal, No. 16, March T., 1964, by Department of Labor and Industry, Bureau of Employment Security, from decision of Unemployment Compensation Board of Review, No. B-FR-9-N-39, in re request of Atlantic Refining Company for relief from charges. Decision reversed.
Morley W. Baker, Assistant Attorney General, with him Walter E. Alessandroni, Attorney General, for Department of Labor and Industry, Bureau of Employment Security, appellant.
Sydney Reuben, Assistant Attorney General, with him Walter E. Alessandroni, Attorney General, for Unemployment Compensation Board of Review, appellee.
H. Barton Off, with him Joel L. Carr and Roy W. Johns, for intervening appellee.
Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.
[ 203 Pa. Super. Page 264]
OPINION BY MONTGOMERY, J.
This is an appeal by the Pennsylvania Department of Labor and Industry from an order of the Unemployment Compensation Board allowing relief to the Atlantic Refining Company (Altantic), intervening appellee, from charges to its unemployment compensation reserve account for benefits granted to 355 of its employes who had been retired on pension*fn1 immediately following their 65th birthdays in accordance with a company policy. The basis for the allowance is § 302(f) of the Unemployment Compensation Law, Act of December 5, 1936, P.L. (1937) 2897, 43 P.S. § 751 et seq., which provides that "... such account shall be charged with all compensation, by even dollars, paid to each individual who received from such employer wage credits constituting the base of such compensation, in the proportion that such wage credits with such employer bears to the total wage credits received by such individual from all employers: Provided, That if the department finds that such individual was separated from his most recent work such employer due
[ 203 Pa. Super. Page 265]
to being discharged for willful misconduct connected with such work, or due to his leaving such work without good cause attributable to his employment, ... thereafter no compensation paid to such individual with respect to any week of unemployment occurring subsequent to such separation ... shall be charged to such employer's account under the provisions of this subsection (f); provided, such employer has filed a notice with the department in accordance with its rules and regulations and within the time limits prescribed therein." As amended by Act of August 24, 1953, P.L. 1397, § 3; Act of September 3, 1955, P.L. 556, § 1, 43 P.S. § 782.
The aforesaid employes were granted benefits on the theory that they had been involuntarily separated from their employment, which theory is supported by the case of Gianfelice Unemployment Compensation Case, 186 Pa. Superior Ct. 186, 142 A.2d 739 (1958); reversed 396 Pa. 545, 153 A.2d 906 (1959). No appeal was taken by the employer in those cases. However, it filed timely notice of its claim for relief from charges under § 302(f) aforesaid.*fn2
In the Reynolds case his claim for benefits was filed on August 25, 1959; and on September 10, 1959, Atlantic filed its request for relief from charges. On October 7, 1959, the bureau granted benefits to Reynolds; but on November 6, 1959, it denied Atlantic relief from charges for two reasons: (a) "Claimant cannot be considered to have left his most recent work for you 'without good cause attributable to that employment'," and (b) "Claimant's separation from ...