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UNEMPLOYMENT COMPENSATION BOARD REVIEW COMMONWEALTH PENNSYLVANIA v. CHARLES BUSS (08/20/76)

decided: August 20, 1976.

UNEMPLOYMENT COMPENSATION BOARD OF REVIEW OF THE COMMONWEALTH OF PENNSYLVANIA
v.
CHARLES BUSS, APPELLANT



Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Charles Buss, No. B-123274-B.

COUNSEL

Charles Buss, with him Richard J. Shiroff, for appellant.

Charles G. Hasson, Assistant Attorney General, with him Sydney Reuben, Assistant Attorney General, and Robert P. Kane, Attorney General, for appellee.

Judges Crumlish, Jr., Mencer and Blatt, sitting as a panel of three. President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer and Blatt. Judges Kramer and Rogers did not participate. Opinion by Judge Crumlish, Jr. Dissenting Opinion by Judge Blatt.

Author: Crumlish

[ 26 Pa. Commw. Page 162]

This is an appeal by Charles Buss (Claimant) from a decision and order of the Unemployment Compensation Board of Review (Board) which denied unemployment compensation by affirming the order of the referee.

Claimant was last employed by the United States Postal Service as a nixie clerk. When the central mark-up system where he worked was transferred to another city, he did not move with the system and entered into leave status. Prior to his going on non-paid leave, Claimant had been given the choice of taking either annual or sick leave status, both of which he refused. Claimant has maintained that despite his physical limitation caused by rheumatoid arthritis, he is nevertheless able to work.

The Board sustained the referee's reversal of the Bureau of Employment Security's determination that Claimant was eligible for benefits. Upon Claimant's request for reconsideration, the Board ordered a remand hearing. After a review of the testimony taken during the remand hearing, the Board reaffirmed its decision.

The sole question presented is whether the Board erred in affirming the determination made by the referee, who found that Claimant is not unemployed and hence is not entitled to unemployment compensation under the appropriate sections of the Unemployment Compensation Law*fn1 (Law).

[ 26 Pa. Commw. Page 163]

The fundamental social purpose of the Unemployment Compensation Law is to provide relief from the rigors of unemployment, that is, to alleviate economic distress in individual cases. Unemployment Compensation Page 163} Board of Review v. Department of Labor and Industry, 203 Pa. Superior Ct. 336, 201 A.2d 310 (1964); Neff v. Unemployment Compensation Board of Review, 195 Pa. Superior Ct. 4, 169 A.2d 338 (1961).

A further tenant of the Law is to help solve involuntary unemployment and its resulting burden of indigency, and the fund is to be used for the benefit of persons unemployed through no fault of their own. Charney v. Unemployment Compensation Board of Review, 194 Pa. Superior Ct. 402, 168 A.2d 604 (1961).

In the case at bar, Claimant was on non-paid leave status, a status he chose. His employment with the Post Office was not terminated. While pension payments do not constitute wages within the Law, the receipt of a pension will not disqualify an employe from receiving unemployment compensation if he meets the other requirements of the Law. Keystone Mining Co. v. Unemployment Compensation Board of Review, 167 Pa. Superior Ct. 256, 75 A.2d 3 (1950). Claimant, if he chose paid leave status, would not be receiving pension payments. If we are to categorize these payments, they are similar to vacation pay. In Sopko v. Unemployment ...


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