Opinion
Argued March 2, 1981
March 18, 1981.
Unemployment compensation — Scope of appellate review — Error of law — Unemployment Compensation Law, Act of December 5, 1936, P.L. (1937) 2897 — Voluntary termination — Cause of a necessitous and compelling nature — Discharge — Effort to preserve employment.
1. In an unemployment compensation case the Commonwealth Court of Pennsylvania may properly consider whether an error of law has been committed by the Unemployment Compensation Board of Review. [621]
2. In an unemployment compensation case an employe is properly found to have voluntarily terminated employment and not to have been discharged when he resigned after being advised that he would no longer hold his old position but that another job would be available to him. [621]
3. An employe voluntarily terminating employment is ineligible for benefits under the Unemployment Compensation Law, Act of December 5, 1936, P.L. (1937) 2897, unless such action was for a cause of a necessitous and compelling nature, and an employe, who resigns when advised that he will be removed from one job and given another and when he reads in a newspaper that he has been relieved of his duties does not act with prudence and ordinary common sense or make a reasonable effort to preserve his employment, is ineligible for such benefits. [621-2]
Argued March 2, 1981, before Judges WILKINSON, JR., BLATT and WILLIAMS, JR., sitting as a panel of three.
Appeal, No. 2524 C.D. 1979, from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Joseph Fazio, Jr., No. B-177822.
Application to the Office of Employment Security for unemployment compensation benefits. Application denied. Applicant appealed to the Unemployment Compensation Board of Review. Denial affirmed. Applicant appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
John L. Jenkins, Barsky, Golden Remick, for petitioner.
Charles G. Hasson, Assistant Attorney General, with him Richard Wagner, Chief Counsel, and Harvey Bartle, III, Attorney General, for respondent.
Claimant appeals to this Court to reverse an order of the Unemployment Compensation Board of Review (Board), which upheld a determination by the referee that the claimant is ineligible for benefits under Section 402(b)(1) of the Unemployment Compensation Law (Act), Act of December 5, 1936, P.L. (1937) 2897, as amended, 43 P. S. § 802(b)(1), for voluntarily terminating his employment without necessitous and compelling reason.
The facts of this case are not in dispute. Claimant Fazio was employed by the Borough of Dunmore as Director of Public Works for approximately seven years. Upon returning from an approved vacation on July 16, 1979, he met with the president of the borough council, at the president's request, and was informed that he would no longer be employed as Director of Public Works. At the same meeting, the president told claimant that another job would be available and offered, but that the details of the actual position, continued seniority, and salary were not fully worked out. Claimant was advised to go home and take a few days vacation, while he waited to hear from the president of council. Upon reading in that evening's newspaper that he was removed from his position as Director of Public Works, claimant tendered his written resignation to the Borough.
Claimant argues in the alternative that, as a matter of law, the facts show that he was actually discharged by his employer without cause, or that he was forced to leave his employment due to circumstances beyond his control. This Court sees merit in neither argument.
It is well established that the scope of our review includes a determination that the legal conclusion drawn by the Board from the findings is appropriate. Richards v. Unemployment Compensation Board of Review, 491 Pa. 162, 420 A.2d 391 (1980).
Claimant advances the argument that, upon review, this Court could, and should, determine that the findings before us support a determination that claimant was discharged without cause, rather than that he resigned. That argument fails in the light of his letter of resignation, and his own testimony that "they were working on something to see if they could get me a position as an operator or something like that." Claimant further testified that the council president stated that a job would be available, that several possibilities were being examined, and that he would contact claimant concerning the further employment.
Turning to claimant's second argument, it is again a question of law, and well within this Court's scope of review, to determine whether these undisputed facts constitute a voluntary leaving without cause of necessitous and compelling reason. Martinez Unemployment Compensation Case, 186 Pa. Super. 50, 140 A.2d 351 (1958), Richards, supra.
Before this Court can so decide, claimant must demonstrate that his behavior was consistent with prudence and ordinary common sense, and was based on factors which are real, substantial and reasonable, not imaginary, trifling, or whimsical. Weglarz v. Unemployment Compensation Board of Review, 41 Pa. Commw. 505, 506, 399 A.2d 819, 820 (1979). He must further show that he made every reasonable effort to maintain the employment relationship. Accord, Barni v. Unemployment Compensation Board of Review, 33 Pa. Commw. 588, 382 A.2d 505 (1978), Sabella v. Unemployment Compensation Board of Review, 52 Pa. Commw. 258, 415 A.2d 722 (1980).
For claimant to draft and submit a letter of resignation in reaction to a newspaper article, when the potential for employment hung in the balance, was behavior that was inconsistent with a sincere desire to maintain employment, and does not comport with standards of prudence and ordinary common sense.
We therefore find that the facts of this case support a conclusion of voluntary termination and affirm the decision of the Board.
ORDER
AND NOW, the 18th day of March, 1981, the Order of the Unemployment Compensation Board of Review in the above-captioned case is hereby affirmed.