Matty v. Commonwealth

457 A.2d 1039, 73 Pa. Commw. 311, 1983 Pa. Commw. LEXIS 1506

• Court: Commonwealth Court of Pennsylvania
• Decided: April 7, 1983
• Docket: Appeal, No. 1036 C.D. 1981
• Status: Published

Opinion

Opinion by

Judge MacPhail,

John Matty (Claimant) has filed this Petition for Beview from a decision of the Unemployment Compensation Board of Review (Board) finding Claimant ineligible for benefits in view of its determination that his unemployment was due to voluntarily leaving work without cause of a necessitous .and compelling nature. Section 402(b) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Seas., P.L. (1937) 2897, as amended, 43 PjS. §802(b). We affirm.

Claimant worked as a laborer for George Logue, Inc. (Employer). On July 21, 1980, Claimant notified Employer that he was retiring “on Social Security”¹ and was willing to work part-time occasionally when needed to help out Employer. The Board found, based on substantial evidence, that 'Claimant had been offered continuing full-time work by Employer after July 21, but that Claimant had refused such offers.² Claimant did work for Employer on an irregular basis until September 20, 1980. Employer’s personnel director testified that he considered Claimant to be “ an on call temporary part-time employee.”

The fundamental purpose of the Unemployment Compensation Law is to compensate individuals who are unemployed through no fault of their own. Barillaro v. Unemployment Compensation Board of Review, 36 Pa. Commonwealth Ct. 325, 387 A.2d 1324 (1978). In this case, Claimant could have continued in full-time employment, but it was his voluntary action in retiring and requesting only occasional work that caused his unemployment. Since voluntary retirement is not cause of a necessitous and compelling nature justifying Claimant’s reduction of his availability for employment, Adamski v. Unemployment Compensation Board of Review, 64 Pa. Commonwealth Ct. 639, 441 A.2d 502 (1982), we must agree with the Board that Claimant’s actions were disqualifying conduct. See Fenk v. Unemployment Compensation Board of Review, 45 Pa. Commonwealth Ct. 213, 405 A.2d 590 (1979); Spong v. Unemployment Compensation Board of Review, 44 Pa. Commonwealth Ct. 560, 404 A.2d 444 (1979).³

Oedeb

The order of the Unemployment Compensation Board of Review, Decision No. B-193935, dated March 31,1981, is hereby affirmed.

1 Claimant was 62 years old.

2 While conflicting evidence on these matters was received, the resolution of such conflicts is for the Board to determine. Grzech v. Unemployment Compensation Board of Review, 56 Pa. Commonwealth Ct. 9, 16, 423 A.2d 1364, 1368 (1981).

3 Claimant contends that the fact of an ongoing employer-employee relationship precludes the application of Section 402(b). Such a contention is clearly erroneous. For example an employee on voluntary leave of absence maintains his employment relationship, yet may be ineligible under Section 402(b). Cf. Crumbling v. Unemployment Compensation Board of Review, 14 Pa. Commonwealth Ct. 546, 322 A.2d 746 (1974) (ineligibility under now repealed Section 402(b)(2)).