Submitted July 11, 2014
Howard B. Rein, Philadelphia, for petitioner.
Gerard M. Mackarevich, Deputy Chief Counsel, Harrisburg, for respondent.
BEFORE: HONORABLE RENÉ E
COHN JUBELIRER, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE JAMES GARDNER
COLINS, Senior Judge.
JAMES GARDNER COLINS, J.
Naval Surface Warfare Center, Carderock Division (Employer) petitions for review of the October 31, 2013 order of the Unemployment Compensation Board of Review (Board) granting Edward L. Hilferty, Jr. (Claimant) unemployment compensation benefits. The issue before this Court is whether Section 402(b) of the Unemployment Compensation Law (Law) renders Claimant ineligible to receive unemployment compensation because he did not have a necessitous and compelling reason for voluntarily leaving his employment or whether Claimant remained eligible for benefits under the " Voluntary Layoff Option" (VLO) because his separation from employment was due to his acceptance of a layoff pursuant to an established employer plan. For the reasons that follow, we hold that Claimant's voluntary retirement did not render him ineligible to receive unemployment compensation benefits and we affirm the order of the Board.
Claimant filed an initial internet claim for unemployment compensation on December 1, 2012. (Record Item (R. Item) 2.) On January 2, 2013, the Department of Labor and Industry issued a Notice of Determination finding Claimant ineligible to receive unemployment compensation under Section 402(b) of the Law, 43 P.S. § 802(b). (R. Item 5.) Claimant appealed the determination and a hearing was held before a Referee on February 7, 2013. (R. Item 9, Referee Hearing Transcript (Referee H.T.).) Claimant appeared pro se and testified; Employer, represented by counsel, presented the testimony of Benedict Zekas, Division Head for Propulsion and Power Systems, and Karen Egan, Human Resources Specialist and Voluntary Early Retirement Authority and Voluntary Separation Incentive Pay Coordinator. (R. Item 9, Referee H.T. at 1.) Following the hearing, the Referee issued a decision and order concluding that Claimant was eligible to receive benefits, and reversed the earlier determination. (R. Item 10.) Employer appealed and on March 28, 2013, the Board affirmed the Referee's decision. (R. Item 12.) Employer filed a request for reconsideration; the Board granted Employer's request for reconsideration on April 29, 2013, vacated its earlier decision and scheduled a hearing with a Referee acting as a hearing officer for the Board. (R. Item 15.)
The remand hearing was held on May 17, 2013. (R. Item 17, Board Hearing Transcript (Board H.T.).) Claimant, who appeared with counsel, testified. ( Id.) Mr. Zekas and Ms. Egan offered additional testimony for Employer. ( Id.) Following the remand hearing, the Board issued a new decision and order in which it adopted and incorporated the findings and conclusions
in the Referee's initial decision, and affirmed the Referee's order. (R. Item 18.) The facts adopted and incorporated by the Board are as follows:
1. For purposes of this appeal, the Claimant was employed as a full-time Statistician with Naval Surface Warfare Center earning $107,659 per year. The Claimant began employment in 1988, and last worked on September 30, 2012.
2. Sometime in May 2012, the Employer offered a voluntary early retirement program to various employees, including [Claimant].
3. The Claimant chose to accept the Employer's voluntary early retirement plan, thereby voluntarily leaving his employment.
4. The Claimant received a financial incentive upon accepting the VERA.
5. After the Claimant's last day of work, the [Claimant] has continued to attempt to secure other employment as a contractor, and has also been on other job interviews.
6. The Claimant voluntarily left employment with Naval Surface Warfare Center to accept the Employer's offer of ...