Oliver v. Unemployment Compensation Board of Review
29 A.3d 95
| Pa. Commw. Ct. | 2011Background
- Oliver worked as a maintenance superintendent for The Philadelphia Housing Authority from 1980 to 2009 and was in a union-represented bargaining unit.
- A side agreement provided that a retiring employee's pension would be calculated using wages from his last three years of employment if retirement occurred before November 1, 2009.
- Before November 1, 2009, Oliver’s estimated pension was $3,051.46; after that date it would be $2,705.34; he admitted earlier retirement would have yielded higher benefits if he waited until age 55.
- As of October 2009, negotiations for a new CBA were ongoing; the pension plan was under change and not finalized.
- Oliver resigned on October 30, 2009, believing he would lose pension money if he did not retire.
- The referee awarded unemployment benefits, but the UCBR reversed, finding no necessitous and compelling reason to retire and thus ineligibility under § 402(b).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the UCBR relied on future speculation rather than facts at separation. | Oliver argues there was a necessitous and compelling reason based on the $300 loss should he have continued to work. | Employer/UCBR contends the pension change was speculative and not a basis to retire; continued work was available. | No; reliance on speculative pension outcomes was improper and insufficient. |
| Whether voluntary retirement to avoid pension loss constitutes necessitous and compelling cause. | Oliver contends the anticipated pension reduction created a necessitous and compelling reason to retire. | Employer argues there was no substantial, certain prospect of loss; ordinary foresight and continued work undermined necessitousness. | No; the record shows speculation about future benefits and available continued employment negated necessitousness. |
| Whether constitutional rights claim was preserved or waived. | Oliver raised constitutional rights claim in petition. | Waiver by failure to raise the claim in the petition for review. | Waived; petition did not raise the constitutional issue. |
| Whether the UCBR's decision was supported by substantial evidence and proper legal standard. | Oliver contends UCBR misapplied law and found facts unsupported by substantial evidence. | UCBR correctly applied Petrill and related authorities to find lack of necessitous reason. | Supported; substantial evidence and correct law support the UCBR ruling. |
Key Cases Cited
- Petrill v. Unemployment Compensation Board of Review, 883 A.2d 714 (Pa.Cmwlth. 2005) (necessitous and compelling cause requires ordinary common sense and preservation efforts)
- Pacini v. Unemployment Compensation Board of Review, 102 Pa.Cmwlth. 355 (Pa.Cmwlth. 1986) (speculative and insubstantial changes do not create necessitousness)
- Duquesne Light Company v. Unemployment Compensation Board of Review, 62 Pa.Cmwlth. 253 (Pa.Cmwlth. 1981) (fringe-benefit changes not necessitous where negotiations not final)
- McCarthy v. Unemployment Compensation Board of Review, 829 A.2d 1266 (Pa.Cmwlth. 2003) (mere speculation about future job circumstances does not establish necessitousness)
- Tyler v. Unemployment Compensation Board of Review, 139 Pa.Cmwlth. 598 (Pa.Cmwlth. 1991) (waiver principles for constitutional claims in review petitions)