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MICHAEL FIORETTI v. COMMONWEALTH PENNSYLVANIA (10/01/79)

decided: October 1, 1979.

MICHAEL FIORETTI, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Michael Fioretti, No. B-160833.

COUNSEL

Michael D. Fioretti, for petitioner.

Charles G. Hasson, Assistant Attorney General, with him Edward G. Biester, Jr., Acting Attorney General, for respondent.

Judges Wilkinson, Jr., Rogers and Craig, sitting as a panel of three. Opinion by Judge Wilkinson, Jr.

Author: Wilkinson

[ 46 Pa. Commw. Page 288]

This is an appeal by petitioner (claimant) from a decision of the Unemployment Compensation Board of Review (Board) which reversed the decision of the referee. The Board held claimant ineligible for unemployment compensation benefits finding he had voluntarily retired. We affirm the Board's denial of benefits.

The claimant was employed as a delivery man for three years by Breuninger Dairies Company. For the 22 years immediately prior thereto, Sealtest Corporation employed claimant to deliver milk. In October 1977 claimant sustained chest pains, back pains, and shortness of breath. He began treatment by a physician, who diagnosed a pinched nerve in the neck. Treatment continued into January 1978.

[ 46 Pa. Commw. Page 289]

In early January of 1978 claimant informed the sales manager of Breuninger Dairies of claimant's retirement plans and filled out an application for retirement. Claimant stated his expected retirement date as January 31, 1978. Subsequently claimant applied for pension benefits and social security. During heavy snowstorms on January 20 and 21, 1978, claimant put in two extremely rough workdays and experienced great pain. His last day of work was January 21, 1978. In March 1978 claimant applied for unemployment compensation benefits.

There is no dispute that claimant voluntarily terminated the employment. Claimant asserts that he quit for health reasons. Thus the pertinent statutory provision is Section 402(b)(1) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. ยง 802(b)(1), which provides, in part:

An employe shall be ineligible for compensation for any week --

(b)(1) In which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature. . . .

Voluntary retirement renders one ineligible for unemployment compensation benefits, but physical disability may constitute a necessitous and compelling justification for voluntary termination of employment and render an employee eligible for benefits. See Baldassano v. Unemployment Compensation Board of Review, 34 Pa. Commonwealth Ct. 457, 383 A.2d 988 (1978). The burden of showing that a voluntary termination was with cause of a necessitous and compelling nature rests ...


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