Appeal from the Order of the Unemployment Compensation Board of Review in case of In re: Claim of James P. Egan, No. B-217553.
Gary M. Lightman, with him, Anthony C. Busillo, II, Mancke, Lightman & Wagner, for petitioner.
Michael D. Alsher, Associate Counsel, with him, Richard L. Cole, Jr., Chief Counsel, for respondent.
Judges MacPhail, Doyle and Barry, sitting as a panel of three. Opinion by Judge Barry.
[ 83 Pa. Commw. Page 563]
James P. Egan (claimant) seeks review of an order by the Unemployment Compensation Board of Review (Board) which affirmed a referee's decision denying unemployment compensation benefits to claimant.
Claimant was last employed by the Borough of Coraopolis (Borough) in Allegheny County, Pennsylvania, as a policeman, a position he held for thirty-five years.
From December 22, 1981, until February 28, 1982, claimant was disabled and receiving workmen's compensation benefits. During claimant's illness-related absence from work, the Borough Council, for economic reasons, voted to reduce the number of policemen within the Borough and to furlough claimant from his job effective January 17, 1982.
Throughout the last twenty-five years of his employment claimant participated in a pension plan which required him to contribute five (5%) per cent of his gross pay. Claimant's contributions to the pension plan totaled more than $12,600.00 during the course of his employment.
Effective March 1, 1982, claimant was compulsorily retired from the police force and then became entitled to receive monthly pension payments of $1,024.99, an amount based upon his years of service, final average pay, and his own contributions.
[ 83 Pa. Commw. Page 564]
In December, 1982, claimant applied for, but was denied unemployment benefits by the Office of Employment Security (OES). That decision was affirmed by a referee and the Board. The OES, the referee, and the Board each decided that the amount of the pension that was deductible pursuant to Section 404(d)(iii) of the Unemployment Compensation Law (Law)*fn1 exceeded the weekly benefit rate and, such being the case, claimant was not entitled to unemployment compensation benefits under the Law.
Where the party with the burden of proof did not prevail before the Board, our scope of review is limited to determining whether the findings of the Board are consistent with each other and with the Board's conclusions of law and its order and whether they can be sustained without a capricious disregard of competent evidence. Hughes v. Unemployment Compensation Board of Review, 51 Pa. Commonwealth Ct. 448, 414 A.2d 757 (1980). In this case there is no dispute as to the relevant facts. The claimant limits his appeal to the contention that the Board committed an error of law by failing to treat the initial pension payments made to claimant as a return of contributions and, as such, not deductible for the ...