Urban Unemployment Compensation Case , 198 Pa. Super. 519 ( 1962 )

Opinion by

Watkins, J.,

In this unemployment compensation case the Unemployment Compensation Board of Review denied benefits under §102(b) (1) of the Unemployment Compensation Law, IB PS §802 (b) (1), because the claimant voluntarily terminated his employment without cause of a necessitous and compelling reason, in that he voluntarily retired to accept a pension.

The claimant, Victor Urban, was last employed as a debit agent for the Home Life Insurance Company of America on October 31, 1957. On July 1, 1957 he was 67 years of age and was eligible for retirement under a retirement plan in effect between him and the company. He continued working and received Ms first retirement check on November 1, 1957. The company claims he requested retirement as of that time and could have continued in his employment with the company’s consent as he did since July 1, 1957. He accepted the check and never questioned his employer concerning work but denies that he requested retirement. Based on this contention he filed for unemployment compensation benefits on the ground that his separation was a result of “involuntary retirement”.

On December 30, 1957, the Bureau of Employment Security had denied benefits to the claimant on the ground that he was excluded from benefits by not being in covered employment under §4 (1) (4) (17) of the law, 43 PS §753. This was affirmed by the referee. However, the Unemployment Compensation Board of Review reversed the referee and held that the claimant was a general employee and not an independent contractor.

The company, thereupon, appealed to this Court, and upon stipulation filed on August 19, 1980, we ordered the record remanded to the board “for the purpose of taMng additional testimony and for further study and consideration in the light thereof, and the issuing of a new decision consistent therewith.” Complying with that order the board, on October 11, 1960, again remanded the case to a referee for further hearing “To receive testimony on claimant’s separation, availability and any other relevant testimony.” Several more hearings were held, and finally, on November 3, 1961, the board vacated its decision of May 19, 1960, and made different findings, the most important of which was that claimant had been retired at his own request rather than by the company, and for that reason was ineligible for benefits.

At the outset, we should point out that the limitation of review by this Court, as fixed by the law, is of particular significance in this case. We cannot substitute what we might possibly have found as facts or drawn as inferences for those found and drawn by the fact finders. The claimant has the burden of proof that his separation was not voluntary. Smith Unemployment Compensation Case, 167 Pa. Superior Ct. 242, 74 A. 2d 523 (1950).

The board is the arbiter of the facts and its findings are conclusive and must be sustained if the record contains competent and substantial evidence to support them. The record must be reviewed in the light most favorable to the party for whom the board found, giving that party the benefit of every inference which can be logically and reasonably drawn from the competent evidence. Sledziowski Unemployment Compensation Case, 195 Pa. Superior Ct. 337, 171 A. 2d 546 (1961), and it was, of course, the duty of the board to pass upon the credibility of the witnesses and the weight of their testimony. As the decision in this case was against the claimant, this Court must determine whether the findings of fact are consistent with each other and with its conclusions of law and its order, and whether such findings of fact can be sustained without a capricious disregard of the competent evidence. Weckerle Unemployment Compensation Case, 191 Pa. Superior Ct. 232, 156 A. 2d 604 (1959).

The question of covered employment which occupied the compensation authorities originally has disappeared from this case and is moot, if the board’s determination that this is a case of “voluntary quit” is sustained.

The retirement plan in effect between the parties pertinent to our problem, reads as follows: “Section IV—Normal Retirement Date ... (b) The Normal retirement date of a member who has attained his 56th birthday but who has not attained his 61st birthday at date of entry into the plan is the tenth anniversary of the plan following entry.” “Section VIII—Benefits . . . When a member attains his normal retirement date he shall retire and receive an annuity which is the actuarial equivalent of the amounts contributed by himself and the matching contributions of the company together with the interest credited up to the date of retirement. The amount of annuity provided shall be . . . In the event that a member with the consent of the company is continued in active service beyond his normal retirement date, no further contributions shall be made by the member or by the company . . .”

The claimant was admittedly eligible for retirement on July 1, 1957. He continued, however, to perform his duties as an employe with the necessary consent of his employer until October 31, 1957, his last day of work. The board concluded that the retirement plan was an optional one because of the language concerning the “normal retirement date”, and the language permitting the employe to continue work. There is credible evidence to support the finding. Although the words “shall retire” are used, the words “normal retirement” and the clause permitting the employe to continue working beyond “normal retirement” seem to rebut its finality.

However, even if we were to decide that it is at least doubtful if the retirement plan was optional, as was said in the Gianfelice Unemployment Compensation Case, 396 Pa. 545, 550, 153 A. 2d 906 (1959) : “There is no doubt that the option clause is ambiguous; that is, it says neither (1) that Gianfelice must retire at age 68 only if the company affirmatively acts to invoke the clause, nor (2) that Gianfelice must retire and may continue only if he secures permission to do so from the company. However, we need not resolve this ambiguity in order to decide the present issue.” The Court went on to say that “the factual matrix at the time of separation should govern.” The question became simply, “(1) did Gianfelice cease working voluntarily as a matter of fact, and (2) was Gianfelice available for work thereafter? Since the answers on the record are (1) no, and (2) yes, Gianfelice is entitled to benefits.”

So in this case if we are to be bound by the factual matrix at the time of separation, we, too, should ask the deciding questions (1) did Urban cease working voluntarily as a matter of fact, and (2) was Urban available for work thereafter? And the board found as a fact that the answer to (1) is yes, and the answer to (2) is no, so he is not entitled to benefits.

The record discloses the following facts: The claimant denies that he ever requested to be placed on retirement. He was eligible for retirement on July 1, 1957 but continued to work until October 31, 1957. He received his first retirement check on November 1, 1957. He did inquire as to Social Security benefits in 1956 and on several other occasions. He discussed his desire to retire and the amount of benefits on several occasions with a number of his superiors before and after July 1, indicating his interest in retirement. His interest in retirement as given to his immediate superiors was carried through the chain of command until it became a request for retirement to a Mr. Tegler, the vice-president in charge of this matter. As Mr. Dan Iatarolla, employer’s district manager, testified: “Q. How came it to pass that he was pensioned? A. Well on several occasions he did come into the office and inquire about what amount of pension he would be entitled to if he would retire, which suggested to me that he did want to retire. What else could you think? . . . Q. Did you notify the company then that he requested to retire? A. I assumed as much, what else.”

There is no definite request by the claimant to go on retirement, either oral or written, but the record is replete with testimony from which an inference of such request can be fairly, reasonably and logically drawn.

At the same time these conversations took place, the physical condition of the claimant was bad. It wasn’t good from the time of his normal retirement date of July 1, 1957. He was hospitalized in September for an intestinal operation which limited his activities. It is also important to point ont that not once during the entire period after receiving his first retirement check did he make inquiry of the company concerning his availability for work; or why he was placed on retirement. No indication was made to the company concerning any dissatisfaction ívith his retirement income and no demand or request made upon the company to permit his continued employment.

There is nothing in the circumstances contained in this record that is inconsistent with voluntary retirement unless the receipt of the retirement check on November 1, 1957 can be so interpreted. It is especially significant that he was paid his salary for the last week in October, in cash, by Mr. Raymond Christinzio, the company’s District Field Manager, who personally visited him, at his home, for that purpose during that week. The payment of retirement as of November 1, indicated that his employment ended October 1, 1957 and there is testimony that this was so entered on the record for his benefit. Under such exceptional circumstances it would seem reasonable, if in fact he was being forced to retire, that he take affirmative action of some kind. He did file for unemployment compensation on November 4, 1957.

This lack of affirmative action on his part, together with all of the circumstances hereinabove recited, bolsters the board’s finding that he failed in his burden of proof of a necessitous and compelling reason for the termination of his employment; and that the separation was voluntary in order to go on retirement.

Decision affirmed.