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ROBERT L. ETTER v. COMMONWEALTH PENNSYLVANIA (03/20/74)

decided: March 20, 1974.

ROBERT L. ETTER, APPELLANT,
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, APPELLEE



Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Robert L. Etter, No. UCK-71-7-D-655.

COUNSEL

Daniel J. Fleck, with him Raymond F. Keisling and Will & Keisling, for appellant.

Sydney Reuben, Assistant Attorney General, with him Israel Packel, Attorney General, for appellee.

Judges Kramer, Mencer and Blatt, sitting as a panel of three. President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Wilkinson. Dissenting Opinion by Judge Blatt.

Author: Wilkinson

[ 12 Pa. Commw. Page 643]

Robert L. Etter, claimant-appellant, retired from the United States Air Force on October 31, 1971, and filed an application for unemployment compensation benefits the next day with the Bureau of Employment Security. The Bureau denied benefits to the claimant-appellant and following a hearing, the referee affirmed the Bureau's decision upon finding that the claimant-appellant "receives an Air Force monthly pension in the amount of $618.84 which is the equivalent of $142.81 weekly." In denying benefits, the referee found that the claimant-appellant had a weekly benefit rate of $81.00 but that under Section 404(d)(iii) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 804(d)(iii), was disqualified from receiving unemployment compensation benefits. On April 10, 1972, the Unemployment Compensation Board of Review affirmed the referee's decision and this appeal followed.

[ 12 Pa. Commw. Page 644]

The sole issue in this case is one of statutory construction. Section 404(d) provides, in pertinent part, as follows: "Notwithstanding any other provisions of this section each eligible employe who is unemployed with respect to any week ending subsequent to the first day of October, one thousand nine hundred seventy-one, shall be paid with respect to such week, compensation in an amount equal to his weekly benefit rate less the total of . . . (iii) that part of a retirement pension or annuity, if any, received by him under a private pension plan to which a base-year employer of such employe has contributed which is in excess of forty dollars ($40) per week. Retirement pension or annuity payments received by the employe under the Federal OASI program, the Federal Railroad Retirement program or under any private retirement plan to which the employe was the sole contributor, shall not be considered a deductible retirement pension or annuity payment for the purpose of this subsection." Claimant-appellant alleges that his pension was a public pension and therefore not deductible under Section 404(d)(iii). We disagree.

The only pensions which are not deductible under Section 404(d)(iii) are those received under the Federal OASI program, the Federal Railroad Retirement program or under any private retirement plan to which the employe was the sole contributor. Obviously, claimant-appellant's Air Force pension cannot be included within any of the above programs and therefore is to be deducted under Section 404(d)(iii).

In determining the intent of the Legislature, we are mindful of the established principle of statutory and case law that mention of a specific matter implies the exclusion of others not mentioned. Pane v. Department of Highways, 422 Pa. 489, 222 A.2d 913 (1966). Here, the obvious intent of the Legislature was to include, as non-deductible, only those pension programs specifically mentioned in Section 404(d)(iii).

[ 12 Pa. Commw. Page 645]

"Furthermore, we think claimant's position is untenable under the declared purpose of the Unemployment Compensation Law. 'Section 3 of Article I (Preliminary Provisions) of the Unemployment Compensation Law. . . . 43 P.S. § 752, constitutes a Declaration of Public Policy with respect to the aims and purposes of the Legislature in establishing a system of unemployment compensation. It is not a mere preamble to the statute, but a constituent part of it and is to be considered in construing or interpreting it.'" (Citation omitted.) Fazio v. Unemployment Compensation Board of Review, 164 Pa. Superior Ct. 9, 12, 63 A.2d 489, 491 (1949). Specifically, we note the following from the Legislature's Declaration of Public Policy, 43 P.S. § 752: "Involuntary unemployment and its resulting burden of indigency falls with crushing force upon the unemployed worker, and ultimately upon the Commonwealth assistance." Clearly the purpose of the Unemployment Compensation Law is to alleviate the rigors of ...


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