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ADOLPH L. PLACEK v. COMMONWEALTH PENNSYLVANIA (06/01/88)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: June 1, 1988.

ADOLPH L. PLACEK, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT

Appeal from the Order of the Unemployment Compensation Board of Review, In Re: Claim of Adolph L. Placek, No. B-249544.

COUNSEL

Steven Kocherzat, for petitioner.

Jonathan Zorach, Assistant Counsel, with him, Clifford F. Blaze, Chief Counsel, for respondent.

Judges Barry and Smith, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Smith.

Author: Smith

[ 116 Pa. Commw. Page 476]

Adolph Placek (Claimant) appeals an order of the Unemployment Compensation Board of Review (Board), which affirmed the decision of the referee holding that a special payment received by Claimant was subject to the pension deduction provided for in Section 404(d)(iii) of the Pennsylvania Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. ยง 804(d)(iii).*fn1 The Board's decision is vacated and remanded for additional findings of fact.

[ 116 Pa. Commw. Page 477]

The sole issue raised by Claimant is whether, as he contends, five weeks of the fourteen weeks' special payment which he received upon retirement is allocable to vacation pay or whether, as the Board contends, the entire amount was properly deducted under Section 404(d)(iii). Claimant filed for benefits with the Office of Employment Security (OES) which issued a determination that the special payment be deducted from benefits pursuant to Section 404(d)(iii). The referee affirmed the OES, and on appeal to the Board, the referee's decision was affirmed.

Our scope of review in unemployment compensation cases is limited to determining whether the findings of fact made by the referee and the Board are supported by substantial evidence in the record as a whole; an error of law was committed; or any of Claimant's constitutional rights were violated. See Estate of McGovern v. State Employees' Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986); Kirkwood v. Unemployment Compensation Board of Review, 106 Pa. Commonwealth Ct. 92, 525 A.2d 841 (1987).

The issue raised by Claimant was previously decided by this Court in Pane v. Unemployment Compensation Board of Review, 95 Pa. Commonwealth Ct. 40, 504 A.2d 958 (1986), where claimant alleged and proved that five weeks of the fourteen weeks' special payment

[ 116 Pa. Commw. Page 478]

    received upon retirement were attributable to unused vacation time, and should not have been deducted from claimant's weekly benefit rate under Section 404(d)(iii). See also McMahon v. Unemployment Compensation Board of Review, 97 Pa. Commonwealth Ct. 480, 509 A.2d 983 (1986). Accordingly, in the instant appeal, this Court is bound to remand to the Board under Kirkwood for specific credibility findings against Claimant if in fact his assertion of the five weeks' vacation time is not supported by substantial evidence in the record taken as a whole.

The referee's finding, adopted by the Board, that Claimant received 14 weeks of company base special pay of $398.98 per week is challenged by Claimant. It is significant that Claimant testified at the hearing before the referee that he was "almost sure" that he had earned, but not used, the five weeks' of vacation. N.T. p. 4. In his Petition for Appeal before the Board, Claimant averred that the five weeks constituted unused, but earned vacation. Employer was not present at the hearing to offer testimony to the contrary.

Having ruled against the burdened party under the circumstances, and, further, in view of this Court's holding in Pane, the Board's order must be vacated and this case remanded to the Board to make additional findings of fact consistent with this opinion.

Order

And Now, this 1st day of June, 1988, the order of the Unemployment Compensation Board of Review dated June 5, 1986 is vacated and the case is remanded to the Board for additional findings of fact consistent with the Court's opinion in this case.

Jurisdiction relinquished.

Disposition

Vacated and remanded.


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