Opinion
No. 2325 C.D. 2011
06-27-2012
New Castle Area Transit Authority, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COVEY
New Castle Area Transit Authority (Employer) appeals from the Unemployment Compensation Board of Review's (UCBR) December 2, 2011 order reversing the decision of the Referee and finding Edward L. Ezzo (Claimant) eligible for benefits under Section 402(b) of the Unemployment Compensation Law (Law). The issue before this Court is whether Claimant had a necessitous and compelling reason to voluntarily leave his employment. We affirm.
Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b).
Claimant last worked as a full-time bus driver for Employer on or about December 16, 2010, for a final hourly wage of $18.75. Claimant left his employment due to illness, and was on short-term disability until he was cleared to return to duty on April 25, 2011. On April 27, 2011, Employer received Claimant's return to work physical examination report. The report stated that Claimant, who is diabetic, had become insulin-dependent. Because federal regulations prohibited Claimant from driving a commercial vehicle due to his insulin dependency, Employer offered him a position as a second-shift janitor. Employer's janitors receive wages of $10.85 per hour. Claimant refused the janitorial position because of the decrease in pay. On May 16, 2011, Employer sent Claimant a letter discharging him for refusing to return to work after his medical release.
Claimant subsequently applied for unemployment compensation (UC) benefits. On June 2, 2011, the Altoona UC Service Center issued a determination that Claimant was eligible for UC benefits under Section 402(e) of the Law. Employer appealed, and a hearing was held before a Referee. On September 6, 2011, the Referee mailed his determination reversing the UC Service Center's ruling and finding Claimant ineligible for benefits under Section 402(b) of the Law. Claimant appealed to the UCBR. On December 2, 2011, the UCBR reversed the Referee and found Claimant eligible for benefits under Section 402(b) of the Law. Employer appealed to this Court.
43 P.S. § 802(e).
This Court's review is limited to determining whether the findings of fact were supported by substantial evidence, whether constitutional rights were violated, or whether errors of law were committed. Johnson v. Unemployment Comp. Bd. of Review, 869 A.2d 1095 (Pa. Cmwlth. 2005). --------
Employer argues that Claimant did not have a necessitous and compelling reason for voluntarily leaving his employment. We disagree.
An employee who claims to have left employment for a necessitous and compelling reason must prove that: (1) circumstances existed which produced real and substantial pressure to terminate employment; (2) such circumstances would compel a reasonable person to act in the same manner; (3) the claimant acted with ordinary common sense; and, (4) the claimant made a reasonable effort to preserve [his] employment.Brunswick Hotel & Conference Ctr., LLC v. Unemployment Comp. Bd. of Review, 906 A.2d 657, 660 (Pa. Cmwlth. 2006). "[A] substantial reduction in pay can constitute a 'necessitous and compelling' cause for voluntarily terminating one's employment. It is true that there is no talismanic percentage figure that separates a substantial reduction from one that is not. Each case must be measured by its own circumstances." Ship Inn, Inc. v. Unemployment Comp. Bd. of Review, 412 A.2d 913, 915 (Pa. Cmwlth. 1980) (citation omitted). While this Court has found "a 3.1[%] pay cut is not a substantial figure sufficient to establish necessitous and compelling cause[,]" Pacini v. Unemployment Compensation Board of Review, 518 A.2d 606, 608 (Pa. Cmwlth. 1986), this Court in Ship Inn found that a 22% cut in salary was a necessitous and compelling cause for voluntary employment termination. Similarly, this Court in Morysville Body Works, Inc. v. Unemployment Compensation Board of Review, 430 A.2d 376 (Pa. Cmwlth. 1981) affirmed the UCBR's award of benefits where the Claimant voluntarily terminated his employment due to a 25% wage reduction. In the instant case, Claimant was offered a job at a wage rate of 42% less his final hourly wage. Clearly, this wage reduction is a substantial cut, thereby, establishing a necessitous and compelling cause for Claimant to voluntarily terminate his employment. Accordingly, the UCBR did not err in concluding the same.
Employer argues that because it was Claimant's medical condition that caused his demotion, the pay cut should not be the determining factor. Employer cites Allegheny Valley School v. Unemployment Compensation Board of Review, 548 Pa. 355, 697 A.2d 243 (1997), to support this position. However, that case involved a claimant who was demoted for poor job performance. The Allegheny Valley School Court determined that "a claimant does not have necessary and compelling reasons to voluntarily terminate his employment if the demotion was justified because the change in job duties and remuneration was the result of the claimant's fault." Id., 548 Pa. at 365, 697 A.2d at 248. Here, Employer's offer of the janitorial position was not the result of a demotion, it was an offer of work based on Claimant's medical condition. Accordingly, Allegheny Valley School is inapplicable.
For all of the above reasons, the UCBR's order is affirmed.
/s/_________
ANNE E. COVEY, Judge
ORDER
AND NOW, this 27th day of June, 2012, the Unemployment Compensation Board of Review's December 2, 2011 order is affirmed.
/s/_________
ANNE E. COVEY, Judge