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DANIEL J. FLANNERY v. COMMONWEALTH PENNSYLVANIA (04/10/89)

decided: April 10, 1989.

DANIEL J. FLANNERY, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeal from the Order of the Unemployment Compensation Board of Review, in the case of Daniel J. Flannery, No. B-261671.

COUNSEL

Robert J. Manara, with him, Robert Senville, for petitioner.

John Herzog, Assistant Counsel, with him, Clifford F. Blaze, Deputy Chief Counsel, for respondent.

President Judge Crumlish, Jr., Judge Smith, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Smith. Judge MacPhail did not participate in the decision in this case.

Author: Smith

[ 125 Pa. Commw. Page 65]

Daniel J. Flannery, Claimant, appeals from a decision of the Unemployment Compensation Board of Review (Board) which affirmed the referee and denied benefits pursuant to Section 402(b) of the Unemployment Compensation Law (Law).*fn1 The Board's decision is affirmed.

Claimant was last employed as a pattern maker by Weaver Industries, Inc. (Employer) from September 23, 1968 through May 22, 1987. Sometime in April, 1987, Employer offered all salaried employees aged fifty-seven and older the opportunity to voluntarily terminate their employment in order to take advantage of an advanced retirement package. This package entitled eligible employees to receive severance payments equal to one week's pay for each full year of service; a lump sum for any unused 1987 vacation days; and continuation of employee's health insurance benefits until medicare eligible or until hired by another company that offers insurance coverage. The Board found continuing work would have been available to Claimant had he decided not to accept the early retirement package. Claimant, however, accepted the early retirement package and received the benefits thereof. Subsequent to his decision, Claimant filed an application for benefits with the Office of Employment Security (OES) which denied him benefits pursuant to Section 402(b) of the Law. Claimant unsuccessfully

[ 125 Pa. Commw. Page 66]

    appealed to the referee and to the Board who also determined that Claimant was ineligible under Section 402(b). Hence, Claimant's petition to this Court for review.*fn2

The issues before this Court are whether the Board erred as a matter of law in not finding the voluntary layoff option proviso to Section 402(b) applicable when considering Claimant's entitlement to benefits; and whether the Board erred in concluding that Claimant voluntarily terminated his employment without cause of a necessitous and compelling nature thus rendering Claimant ineligible for benefits pursuant to Section 402(b). The arguments will be discussed seriatim.

Claimant contends that the Employer plan was in essence a layoff plan thus placing his claim within the purview of the voluntary layoff option proviso. Although Claimant makes a valiant effort to transform the Employer's plan into a voluntary layoff plan, the record defies this transposition. Employer testified that this plan was introduced to reduce overhead costs but was purely a voluntary program for those people who wanted to retire. Employer testified further that if Claimant did not choose to exercise this option, things would proceed without any changes; and that Claimant was not facing an imminent layoff or salary cut. N.T., p. 10.

It is well established that the Board's findings of fact, as long as supported by evidence in the record, are conclusive on appeal. Broadus v. Unemployment Compensation Board of Review, 118 Pa. Commonwealth Ct. 196, 544 A.2d 1098 (1988). It is clear from the ...


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