Charles v. Com., Unemployment Compensation Bd. of Review

• Decision Date: 04 January 1989
• Citation: 122 Pa.Cmwlth. 439,552 A.2d 727
• Parties: Antowyne D. CHARLES, Petitioner, v. COMMONWEALTH of Pennsylvania, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, Respondent.
• Court: Pennsylvania Commonwealth Court

Page 727

552 A.2d 727

122 Pa.Cmwlth. 439

Antowyne D. CHARLES, Petitioner, v. COMMONWEALTH of Pennsylvania, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, Respondent.

Commonwealth Court of Pennsylvania.

Submitted on Briefs Oct. 11, 1988.

Decided Jan. 4, 1989.

Anne P. Felker, Lehigh Valley Legal Services, Easton, for petitioner.

Clifford F. Blaze, Deputy Chief Counsel, Gary L. Kelley, Asst. Counsel, Harrisburg, for respondent.

Before CRAIG and PALLADINO, JJ., and BARBIERI, Senior Judge.

PALLADINO, Judge.

Antowyne D. Charles (Petitioner) appeals an order of the Unemployment Compensation Board of Review (Board) reversing the decision of a referee to award him unemployment compensation benefits. We affirm.

Petitioner was employed by Rotondo Penn Construction Company (Employer) as a concrete panel repairman from August 1986 to February 1, 1987. His job site was approximately forty-five (45) miles from his home and he used his car to get there. About three weeks prior to his last day of work, Petitioner requested that Employer lay him off because his car was gradually breaking down and he needed time to repair it, but Employer refused to do so. Petitioner testified that company policy specifically provides that if an employee is absent more than three days without a medical excuse, he will be terminated. Notes of Testimony at 5. When Petitioner's car became inoperable, he telephoned Employer on three consecutive work days to report off and to notify Employer of his car problems. On the third day, Petitioner quit.

The Office of Employment Security (OES) denied benefits and, on appeal, a referee, before whom only Petitioner testified, granted benefits. On Employer's appeal, the Board reversed the referee's award and denied benefits.¹

On appeal to this court, Petitioner presents two issues for our review: (1) whether the Board committed an error of law in concluding that Petitioner voluntarily terminated his employment; and (2) if Petitioner voluntarily terminated his employment, whether the Board erred in determining that he lacked cause of a necessitous and compelling nature for doing so.

VOLUNTARY QUIT

Petitioner first contends that the Board erred in finding him ineligible for benefits under section 402(b) of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b). Section 402(b) renders ineligible for benefits an employee who voluntarily terminates his employment without cause of a necessitous and compelling nature. In a voluntary quit case, this court must first determine whether the facts surrounding Petitioner's separation from employment constitute a voluntary resignation or a discharge. Maines v. Unemployment Compensation Board of Review, 110 Pa.Commonwealth Ct. 601, 532 A.2d 1248 (1987). This is a question of law subject to our review. Id.

Petitioner does not dispute that he quit. N.T. at 5-6. However, Petitioner contends that he only quit to avoid being fired pursuant to Employer's policy of discharging employees absent more than three days without a doctor's excuse. Petitioner asserts that when he requested a layoff, Employer's manager "told me that there is nothing, there is no way that he could do anything for me, he said the only thing that I could do was take three days off and get fired." N.T. at 5. Petitioner argues that Employer's manager's statement amounted to a discharge.

An employer's language must possess the immediacy and finality of a firing in order for that language to be interpreted as a discharge. Sweigart v. Unemployment Compensation Board of Review, 47 Pa.Commonwealth Ct. 421, 408 A.2d 561 (1979). Where an employee, without action by the employer, leaves or quits work, the employee's action is considered voluntary under the Law. Roberts v. Unemployment Compensation Board of Review, 61 Pa.Commonwealth Ct. 21, 432 A.2d 646 (1981).

Given this test, we cannot conclude that Employer's language in this case possessed the immediacy and finality of a discharge. Employer's statement of company policy did not compel Petitioner to leave his job. Nor did Petitioner wait to find out if Employer would actually fire him when he telephoned the third time to notify Employer of his car troubles before he quit. Where an employee resigns in order to avoid the chance of being fired, that employee is deemed to have voluntarily quit. Scott v. Unemployment Compensation Board of Review, 63 Pa.Commonwealth Ct. 346, 437 A.2d 1304 (1981). Thus, the Board properly determined that Petitioner voluntarily terminated his employment.

CAUSE OF NECESSITOUS AND COMPELLING NATURE

Petitioner next contends that if the Board correctly determined that he quit voluntarily, the Board erred in concluding that he lacked cause of a necessitous and compelling nature to leave his employment. Petitioner asserts that his transportation difficulties constituted such cause as to entitle him to benefits under the Law.

Initially, we note that an employee who voluntarily terminates his employment bears the burden of establishing that such termination resulted from cause of a necessitous and compelling nature. Latzy v. Unemployment Compensation Board of Review, 87 Pa.Commonwealth Ct. 432, 487 A.2d 121 (1985). Petitioner would have us find that he quit for cause of a necessitous and compelling nature simply because his car broke down and he needed time to repair it. We will not so hold. This court has in prior cases, where the employer's actions caused an employee's transportation inconvenience, considered whether such inconvenience constitutes cause of a necessitous and...