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WESTINGHOUSE ELECTRIC CORPORATION v. COMMONWEALTH PENNSYLVANIA (07/17/89)

decided: July 17, 1989.

WESTINGHOUSE ELECTRIC CORPORATION, PETITIONER,
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



PETITION FOR REVIEW

COUNSEL

James C. Brennan and Cynthia A. McNicholas, Rankin, Brennan & Donaldson, Media, for petitioner.

Clifford F. Blaze, Deputy Chief Counsel, Harrisburg, and James Bradley, Asst. Counsel, and Gary L. Kelley, for respondent.

Theodore Goldberg and Janice M. Savinis, Henderson & Goldberg, P.C., Pittsburgh, for Intern. Union of Electronic, Elec., Salaried Machine and Furniture Workers.

Crumlish, Jr., President Judge, and Craig, Doyle, Barry, Colins, McGinley and Smith, JJ. Crumlish, Jr., President Judge, concurring.

Author: Barry

[ 127 Pa. Commw. Page 173]

OPINION

This case originally consisted of two unemployment compensation proceedings involving Westinghouse Electric Corporation (Westinghouse) which were consolidated for argument before this Court. A decision was filed by this Court and reported as Westinghouse Electric Corporation v. Unemployment Compensation Board of Review, Pa. Commonwealth Ct. , 549 A.2d 623 (1988). Subsequently this Court granted reargument of the prior decision and consolidated the argument with a third unemployment case in which Westinghouse is the employer and involving the same issue. The order granting reargument specifically instructed the parties to address the applicability of Czuba v. Unemployment Compensation Board of Review, 55 Pa. Commonwealth Ct. 231, 422 A.2d 1235 (1980), in their supplemental briefs.

Since the three cases are similar and since our earlier decision recites the facts of the first two cases, we will only recite the facts of the new case here. Claimant, Leonard Weisman, was employed by Westinghouse for twenty-seven

[ 127 Pa. Commw. Page 174]

    years but had not yet reached normal retirement age. He was separated from his employment due to a plant closing and applied for unemployment compensation benefits. Claimant received a lump sum pension payment pursuant to a Westinghouse policy giving early retirement benefits to employees who lose their jobs by reason of a plant closing. The Office of Employment Security deducted the equivalent weekly amount of his pension from his unemployment benefits but a referee granted benefits without a reduction and the Unemployment Compensation Board of Review (Board) affirmed.

Our prior decision in this matter held that the retirement benefits paid to an employee separated from his employment due to a plant closing before he reaches retirement age are not to be deducted from unemployment compensation benefits received by him. The decision was based on the Board's regulation, 34 Pa.Code ยง 65.103, which states that retirement payments made prior to retirement date because of a permanent and involuntary separation from employment shall not be deducted from unemployment benefits. We held that this regulation remained valid despite a 1980 amendment to the underlying statute*fn1 which expanded the types of retirement benefits which were to be deducted from unemployment benefits. Our reasoning was that the Board has apparently continued to invoke the regulation, that the amendment to the statute did not purport to limit the Board's ability to regulate the deduction of pension benefits from unemployment benefits, and that neither the Board nor the legislature has sought to change the effect of the regulation. Because we do not find that Czuba affects our prior decision, our prior order will be confirmed.

In Czuba employees younger than sixty-two years of age when a plant was shut down received regular retirement payments plus $300 per month supplemental payments. This Court held ...


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