Opinion
Argued June 6, 1975
December 22, 1975.
Unemployment compensation — Retirement plan — Deduction of benefits — Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897 — Recovery of employe contributions — Evidence presented on appeal.
1. The deduction from unemployment compensation benefits required by the Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897, when the eligible employe also receives a retirement pension to which his employer has contributed, must be made even though the claimant has not yet recovered his own contributions to the retirement fund. [517-8]
2. In an unemployment compensation case, a claimant cannot, for the first time at the appellate level, offer evidence relating to the amount of a retirement pension and relevant to the amount of the deduction to be made for such pension from his unemployment compensation benefits. [518]
Judge BLATT filed a dissenting opinion which was substantially as follows:
1. Receipt of benefits from a public pension plan has no effect on the amount of unemployment compensation benefits which such person may receive. [518]
Argued June 6, 1975, before Judges CRUMLISH, JR., KRAMER and BLATT, sitting as a panel of three. Reargued December 1, 1975, before President Judge BOWMAN and Judges CRUMLISH, JR., KRAMER, WILKINSON, JR., MENCER, ROGERS and BLATT.
Appeal, No. 1684 C.D. 1973, from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Pasquale A. Bonanni, No. B-119716.
Application to Bureau of Employment Security for unemployment compensation benefits. Benefits awarded subject to deduction due to receipt of pension. Applicant appealed to the Unemployment Compensation Board of Review. Award affirmed. Applicant appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Pasquale A. Bonnani, appellant, for himself.
Charles G. Hasson, Assistant Attorney General, with him Sydney Reuben, Assistant Attorney General, and Robert P. Kane, Attorney General, for appellee.
This is an appeal by Pasquale A. Bonnani from an order of the Unemployment Compensation Board of Review, dated November 19, 1973, which affirmed an order of a referee reducing Bonnani's weekly unemployment compensation benefits to $12.00.
Bonnani retired on June 29, 1973, from the federal civil service. He receives a monthly pension of $518, the equivalent of $119 per week. The referee relied upon section 404(d)(iii) of the Unemployment Compensation Law (Act), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P. S. § 804 (d)(iii) (Supp. 1975-1976), which reads, in relevant part:
"(d) Notwithstanding any other provisions of this section each eligible employe who is unemployed with respect to any week ending subsequent to the first day of July, one thousand nine hundred seventy-one shall be paid with respect to such week, compensation in an amount equal to his weekly benefit rate less the total of . . . (iii) that part of a retirement pension or annuity, if any, received by him under a private pension plan to which a base-year employer of such employe has contributed which is in excess of forty dollars ($40) per week."
Applying this formula to Bonnani's pension figures, the referee correctly computed Bonnani's benefits at $12 per week.
Bonnani argues that a deduction of pension benefits from unemployment compensation benefits is not required until a claimant has recovered his contributions to the pension fund. This argument has been rejected many times. See Goldsmith v. Commonwealth of Pennsylvania, Unemployment Compensation Board of Review, 15 Pa. Commw. 57, 324 A.2d 892 (1974); Etter v. Commonwealth of Pennsylvania, Unemployment Compensation Board of Review, 12 Pa. Commw. 642, 316 A.2d 659 (1974); Ettelson v. Commonwealth of Pennsylvania, Unemployment Compensation Board of Review, 12 Pa. Commw. 617, 316 A.2d 661 (1974); and Dalesio v. Commonwealth of Pennsylvania, Unemployment Compensation Board of Review, 10 Pa. Commw. 343, 310 A.2d 92 (1973).
Bonnani refers to the fact that the Internal Revenue Service considers the recoupment of employe pension contributions to be a return of the employe's previously earned income, as support for his proposed construction. This precise argument was rejected in Ettelson, supra, and Dalesio, supra. See also Salzstein Unemployment Compensation Case, 207 Pa. Super. 214, 217 A.2d 786 (1966). Rarely are we faced with such a wealth of controlling authority.
Bonnani raises an additional issue concerning the referee's computation of benefits, contending that the referee failed to take into account a reduction in his pension benefits which occurred because of a "withdrawal plus interest, eighteen (18) years prior to retirement." It appears that Bonnani's pension checks were smaller than usual, during the first two months of his retirement, due to the previous withdrawals. The only evidence before the referee on this point was one assertion by Bonnani that he did not receive the full $518 for the first two months of retirement. Bonnani introduced no evidence indicating why this reduction occurred or how large the reduction was. There were no facts before the referee on this question, and Bonnani cannot offer this information at the appellate level.
In light of the above, we
ORDER
AND NOW, this 22nd day of December, 1975, it is ordered that the order of the Unemployment Compensation Board of Review, dated November 19, 1973, is affirmed.
I dissent for the reason that I do not believe that a public plan such as this one is deductible. See my dissent in Etter v. Unemployment Compensation Board of Review, 12 Pa. Commw. 642, 316 A.2d 659 (1974).