Lough v. Cole

• Decision Date: 15 December 1983
• Docket Number: No. 15908,15908
• Court: West Virginia Supreme Court
• Parties: Douglas W. LOUGH v. Phyllis J. COLE, Clerk, etc., et al., and Will H. Melet Co.

Page 491

310 S.E.2d 491

172 W.Va. 730

Douglas W. LOUGH v. Phyllis J. COLE, Clerk, etc., et al., and Will H. Melet Co.

No. 15908.

Supreme Court of Appeals of West Virginia.

Dec. 15, 1983.

Syllabus by the Court

1. "Findings of fact by the Board of Review of the West Virginia Department of Employment Security, in an unemployment compensation case, should not be set aside unless such findings are plainly wrong; however, the plainly wrong doctrine does not apply to conclusions of law by the Board of Review." Syl. pt. 1, Kisamore v. Rutledge, 166 W.Va. 675, 276 S.E.2d 821 (1981).

2. Where an employee left his employment to seek other work because the employer was in the process of going out of business, that employee was not disqualified from receiving unemployment compensation benefits under the provisions of W.Va.Code, 21A-6-3(1) [1981], which section states, in part, that an individual shall be disqualified for benefits "[f]or the week in which he left his most recent work voluntarily without good cause involving fault on the part of the employer and until the individual returns to covered employment and has been employed in covered employment at least thirty working days."

Robert J. Lamont, WVLSP, Charleston, for appellant.

Will H. Melet Co., Clarksburg, for appellee.

McHUGH, Justice:

This action is before this Court upon the petition of Douglas W. Lough for an appeal from the final order of the Circuit Court of Kanawha County, West Virginia, dated April 11, 1983. ¹ Pursuant to that order, the circuit court affirmed the decision of the Board of Review of the West Virginia Department of Employment Security denying the petitioner unemployment compensation benefits. This Court has before it the petition for appeal, all matters of record and the brief and argument of counsel for the petitioner. The respondents did not appear for argument or file briefs before this Court.

The petitioner, Douglas W. Lough, worked for the respondent, the Will H. Melet Co., (hereinafter "Melet"), as a salesman from June 21, 1982, until June 30, 1982. ² Melet was located in Clarksburg, West Virginia. At the time the petitioner was hired he was informed that Melet was going out of business. In July, 1982, after the petitioner left his employment, Melet ceased doing business.

A few days after the petitioner left Melet, he began working for another employer, at a Burger Chef, and remained in that employment until July 28, 1982. The petitioner testified before the Department of Employment Security that he left Melet to work at Burger Chef because Melet was going out of business. The record indicates that the Burger Chef in question also ceased doing business in July, 1982. ³

The petitioner sought unemployment compensation benefits, and by decision dated September 16, 1982, a deputy of the Department of Employment Security held that the petitioner was eligible to receive such benefits. The deputy further held, however, that the petitioner was disqualified (indefinitely from June 27, 1982) from receiving such benefits.

The decision of the deputy disqualifying the petitioner from receiving unemployment compensation benefits was later affirmed by an administrative law judge of the Department of Employment Security and, subsequently, by the Department's Board of Review.

Pursuant to W.Va.Code, 21A-7-17 [1967], the petitioner appealed the decision of the Board of Review to the Circuit Court of Kanawha County. As reflected in its final order dated April 11, 1983, the circuit court upheld the petitioner's disqualification for benefits. ⁴

It should be noted that no issue has been raised before this Court concerning the petitioner's eligibility for unemployment compensation benefits. This Court, therefore, has before it the narrow question of whether the petitioner was properly disqualified from receiving such benefits because he allegedly left his employment with Melet voluntarily.

The circuit court based its finding of disqualification upon the provisions of W.Va.Code, 21A-6-3 [1981]. That statute provides, in relevant part, as follows:

Upon the determination of the facts by the commissioner, an individual shall be disqualified for benefits:

(1) For the week in which he left his most recent work voluntarily without good cause involving fault on the part of the employer and until the individual returns to covered employment and has been employed in covered employment at least thirty working days.

In syllabus point 1 of Kisamore v. Rutledge, W.Va., 276 S.E.2d 821 (1981), we held that "[f]indings of fact by the Board of Review of the West Virginia Department of Employment Security, in an unemployment compensation case, should not be set aside unless such findings are plainly wrong; however, the plainly wrong doctrine does not apply to conclusions of law by the Board of Review." ⁵ In the action now before this Court, the Board of Review adopted a determination by the administrative law judge that the termination of the petitioner's employment with Melet resulted from the "sole decision" of the petitioner and did not involve fault upon the part of Melet. See n. 4, supra. Similarly, the circuit court in its final order indicated that the petitioner left Melet voluntarily.

In Kartridg-Pak Co. v. Johnston, 28 Ill.2d 616, 192 N.E.2d 867 (1963), the employer shut down the plant where the claimant had been working. The testimony in that action was in dispute as to whether the claimant was discharged by the employer as a result of the closing of the plant or whether the claimant, shortly before the closing, voluntarily left his employment to seek another job. In affirming the claimant's eligibility for unemployment compensation benefits, the Supreme Court of Illinois in Kartridg-Pak Co. concluded that the weight of the evidence indicated that the claimant had been discharged from his employment. The court further concluded that an offer by the employer to the claimant of employment at another plant operated by the employer was too indefinite to render the claimant ineligible for benefits.

With respect to the employer's assertion that the claimant voluntarily left his employment to seek another job, the court, in Kartridg-Pak Co., noted as follows:

[I]neligibility for benefits on the basis of a 'voluntary quit' is based upon either proof or presumption that the job left by the employee remained open to him. [citation omitted] Here, claimant's job was abolished when plaintiff shut down the Pacific Avenue plant, and it cannot be said that he voluntarily quit a job he never had, or which the board found was never offered to him.

28 Ill.2d at 624, 192 N.E.2d at 871.

Similarly, the employer in Becote v. Commonwealth, Unemployment Compensation Board of Review, 18 Pa.Cmwlth. 639, 339 A.2d 856 (1975), shut down the plant where the claimant had been working. Thereafter, the claimant did not seek work from the employer which the employer asserted was available at a new plant at a new location. In holding that the claimant was entitled to unemployment compensation benefits, the Commonwealth Court of Pennsylvania in Becote indicated that the claimant, after the closing of the old plant, would have been out of work through no fault of her own for a certain period of time, regardless of the possibility of employment at the new plant. Rejecting the employer's contention that the claimant quit her work voluntarily, the court stated as follows:

[T]he circumstances were such that the claimant could not be legally presumed to have quit her job. Obviously, she cannot be held to have voluntarily terminated her employment relationship when it was the fact that her employer decided to go out of business which brought about her unemployment, at least initially.

18 Pa.Cmwlth. at 642, 339 A.2d at 858.

In Anthony Adams AIA Architect v. Department of Employment Security, 139 Vt. 413, 430 A.2d 446 (1981), the employer and the claimant agreed at the time of hiring that the claimant's employment would be for a temporary assignment of four to six weeks. The claimant actually worked for six weeks, after which the job was completed and the work terminated. Holding that the claimant was entitled to unemployment compensation benefits, the Supreme Court of Vermont, in Anthony Adams AIA Architect, concluded that an employee who accepts a temporary position does not leave that position voluntarily at the end of the agreed period. The court stated as follows: "At the end of the six weeks worked by the employee in this case, the job for him simply ceased to exist. He did not have the option of continuing to work. The claimant became unemployed because of a lack of work, not because he voluntarily left his position." 139 Vt. at 414-15, 430 A.2d at 447.

On the other hand, the Supreme Court of Delaware in Wilmington Country Club v. Unemployment Insurance Appeal Board, 301 A.2d 289 (Del.1973), held a claimant to be ineligible for unemployment compensation benefits in a case where the claimant, in accepting employment, knew the employment was for a limited duration. In that case, the claimant was employed by a country club as a bartender for special occasions and earned only $77 during the year in question. The Delaware court noted that "[a]t no time was he a regular full or part time employee of the Club." 301 A.2d at 290. In finding ineligibility for benefits, the court stated as follows: "We think the acceptance of employment under these conditions amounted to voluntary termination of the employment at the expiration of the limited occasion. F...