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GEORGE TRETTER v. COMMONWEALTH PENNSYLVANIA (09/25/81)

decided: September 25, 1981.

GEORGE TRETTER, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT. WATT & SHAND, INTERVENOR



Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of George Tretter, No. B-177865-B.

COUNSEL

John Burson, with him Gregory Paulson and Michael Goldberg, and Marian E. Frankston, for petitioner.

No appearance for respondent.

Leslie R. Stellman, with him Bruce S. Harrison, Shawe & Rosenthal, and Christopher S. Underhill, with him John I. Hartman, Jr., Hartman, Underhill & Brubaker, for intervenor.

Judges Rogers, Williams, Jr. and Palladino, sitting as a panel of three. Opinion by Judge Williams, Jr. Judge Palladino dissents.

Author: Williams

[ 62 Pa. Commw. Page 71]

Claimant appeals to this Court to reverse the decision of the Unemployment Compensation Board of Review (Board), which affirmed the determination of the referee that claimant was ineligible for benefits under Section 402(b)(1) of the Unemployment Compensation Law (Act), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. ยง 802(b)(1), for voluntarily terminating his employment without cause of a necessitous and compelling reason.

The Board found that claimant was employed as a stockman by Watt & Shand (employer) from March, 1966, until the day he had chosen as his retirement date, June 1, 1979. Claimant had had his 65th birthday on March 27 of that year, and had informed his employer during the previous fall that he intended to retire sometime during the summer of 1979. Claimant and employer discussed his retirement plans sometime around February 1, 1979, and mentioned the possibility of moving the date up from June 1 to April 1. However, during that discussion, claimant learned that he had to work until May 15 to become eligible for full vacation benefits, so he re-affirmed June 1 as his retirement day.

Sometime very shortly after April 12, claimant informed employer that he no longer wanted to retire on

[ 62 Pa. Commw. Page 72]

June 1, that he wished to continue his employment at least until he had earned the maximum amount allowed under Social Security regulations, which would have occurred in September. Since the employer had already sent notification to its pension insurer of claimant's retirement date, it refused the revocation of the employment termination.

In denying benefits, the Board cited Walker v. Unemployment Compensation Board of Review, 27 Pa. Commonwealth Ct. 552, 367 A.2d 366 (1976) for the proposition that an employee who voluntarily retires has left his job without necessitous and compelling reasons. It further stated that resignation, later revoked, retains its voluntary characteristics if the employer has "taken steps" to replace the employee before the employer receives notice of the revocation. As its authority for this legal tenet, the Walker case cites Soyster v. Unemployment Compensation Board of Review, 197 Pa. Superior Ct. 547, 180 A.2d 123 (1962), which involved the ...


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