# Kelly v. Unemployment Compensation Board of Review

> Commonwealth Court of Pennsylvania · August 16, 1996 · 682 A.2d 29

URL: https://www.frixlaw.com/law-library/cases/4953055

## Case

- **Full name:** Leo G. KELLY v. UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, Respondent PECO ENERGY COMPANY v. UNEMPLOYMENT COMPENSATION BOARD OF REVIEW
- **Court:** Commonwealth Court of Pennsylvania
- **Decided:** August 16, 1996
- **Citations:** 682 A.2d 29; 1996 Pa. Commw. LEXIS 341
- **Precedential status:** Published
- **Opinion:** Concurring in part by McGinley
- **Judges:** McGinley, Silvestre, Silvestri, Smith
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4953055

## Opinion text

McGINLEY, Judge,
concurring and dissenting.
I agree with the result reached by the majority. I write separately, however, because I disagree with the reasoning which the majority uses to reach that result. Initially, I believe the majority creates confusion by stating that “Pennsylvania law ... reduces benefits by amounts attributable to any pension”, Majority opinion at 32, n. 5 (citations omitted), while acknowledging that there is an administrative exemption, Majority opinion at 32, n. 6.
I also disagree with the majority’s reasoning at footnote 6 why 34 Pa.Code § 65.103 does not apply. While I agree that 34 Pa. Code § 65.103 does not apply, this does not mean Kelly was not involuntarily separated from his employment. The majority concludes that the administrative exemption at 34 Pa.Code § 65.103 is inapplicable “both because Kelly was not involuntarily separated from his employment and because minimum retirement age with Employer was 50 years and Kelly was 53 years old at the time of his voluntary separation.” Majority opin *33 ion at 32, n. 6. In the present controversy, Kelly voluntarily terminated his employment for a necessitous and compelling reason prior to his scheduled retirement date and received retirement benefits. I believe that a finding of a “necessitous and compelling reason” negates all voluntariness attached to the termination and is equivalent to an involuntary termination. Further, the record reflects that the normal retirement age for employees was 62, and the VRIP facilitated employees to retire at 60 without penalty.
I concur in the result reached by the majority because pursuant to the VRIP Kelly was entitled to retire with full benefits, in other words, as if he reached normal retirement age. In Boyle v. Unemployment Compensation Board of Review, 130 Pa.Cmwlth. 32 , 566 A.2d 1259 (1989), this Court held that forced retirement in lieu of a layoff did not entitle a claimant to unemployment compensation benefits where the claimant was eligible to receive full pension benefits because of his age. This is the same situation that confronts Kelly.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4953055. Public record. Not legal advice.