A-Positive Electric v. Unemployment Compensation Board of Review

654 A.2d 299, 1995 Pa. Commw. LEXIS 76
CourtCommonwealth Court of Pennsylvania
DecidedFebruary 2, 1995
StatusPublished
Cited by13 cases

This text of 654 A.2d 299 (A-Positive Electric v. Unemployment Compensation Board of Review) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
A-Positive Electric v. Unemployment Compensation Board of Review, 654 A.2d 299, 1995 Pa. Commw. LEXIS 76 (Pa. Ct. App. 1995).

Opinion

KELLEY, Judge.

A-Positive Electric (employer) appeals from an order of the Unemployment Compensation Board of Review granting Evelyn Wiegmann’s (claimant) claim for benefits pursuant to section 402(b) of the Pennsylvania Unemployment Compensation Law (Law).1 We affirm.

Claimant was last employed by employer for approximately eight months as an office administrator and a field electrician. Claimant was hired to perform administrative duties for employer and, under a separate contract, to bid on residential wiring contracts with an outside contractor. Claimant and approximately five other employees would then perform the electrical work on the projects. Claimant was paid a $100 bonus for each of the residential wiring contracts she secured and was to be paid a commission of the profit upon completion of the projects.

In July 1993, claimant requested a raise based on her financial needs, including child care through the welfare department, and on increased cost of living expenses. Employer advised claimant that he felt he would be able to give her $50 more a week, plus child care expenses. Claimant refused a job offer with another employer because of employer’s promise to give her a pay raise and because her current job was closer to her home which would give her more opportunity to be with her family.

On or about August 10, 1993, employer told claimant that he could not give her a raise nor could he pay her child care costs. Employer could not afford to do so at that time because the outside contractor was dissatisfied with the fact that two of the five residential electrical wiring contracts had not been completed. Employer had to hire outside commercial electricians whose pay scales were higher than those of his own employees in order to finish the residential wiring projects. Due to the additional expenses incurred in salary and back charges, employer did not make a profit and claimant did not [301]*301receive her 45% commission at the completion of the contract.

On August 16, 1993, claimant began a two-week approved leave because she was getting married. Claimant was to return to work on August 26,1993. On August 25,1993, claimant voluntarily quit her job because she was dissatisfied with not receiving the pay increase as promised and because she had received her last paycheck late. Prior to quitting her job, claimant had discussed her dissatisfaction with employer.

On December 14, 1993, the Job Center issued a determination that claimant was not eligible for benefits under section 402(b) of the Law because she voluntarily quit her job, without cause of a necessitous and compelling nature, while continuing work was available. Claimant appealed this decision to a referee.

On February 15, 1994, the referee, after a hearing, affirmed the Job Center’s determination. Claimant appealed the referee’s decision to the board.

On April 22, 1994, the board reversed the decision of the referee and granted claimant benefits. The board resolved a conflict in testimony as to what promises employer had made to claimant concerning a salary increase in favor of claimant and found claimant’s testimony credible. The board concluded that claimant had met her burden of proving necessitous and compelling cause for voluntarily quitting her job where claimant had not received a raise that had been promised to her by employer and had received one paycheck late. It is from the order of the board that employer now brings this appeal.

Our scope of review is limited to determining whether constitutional rights were violated, an error of law was committed, or necessary findings of fact were supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704; Kirkwood v. Unemployment Compensation Board of Review, 106 Pa.Commonwealth Ct. 92, 525 A.2d 841 (1987). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Peak v. Unemployment Compensation Board of Review, 509 Pa. 267, 501 A.2d 1383 (1985). The board is the ultimate fact finder and is entitled to make its own determinations as to witness credibility and evidentiary weight. Id.

In this appeal, employer raises the following issues: (1) whether the board erred in concluding that employer’s failure to increase claimant’s wages at some indefinite time in the future constituted cause of a necessitous and compelling nature for claimant to voluntarily terminate employment; (2) whether the breach of an alleged promise to increase an employee’s wages at some indefinite time in the future constituted a substantial reduction in pay for purposes of determining whether claimant had cause of a necessitous and compelling nature to voluntarily terminate employment; and (3) whether the late payment, by ten days, of one paycheck created a necessitous and compelling reason to voluntarily terminate employment.

A claimant who alleges that she has terminated her employment for necessitous and compelling reasons has the burden of establishing the existence of such reasons. Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 378 A.2d 829 (1977). Necessitous and compelling reasons for leaving one’s job must result from “circumstances which produce pressure to terminate employment that is both real and substantial, and which would compel a reasonable person under the circumstances to act in the same manner.” Id. at 359, 378 A.2d at 832-33. Whether a claimant’s reasons for terminating employment were of a necessitous and compelling nature is a legal conclusion subject to review by this court. Ayres v. Unemployment Compensation Board of Review, 143 Pa.Commonwealth Ct. 310, 598 A.2d 1083 (1991).

Employer asserts that claimant’s reason for quitting her job was her mere dissatisfaction with her rate of pay which is not a necessitous and compelling reason. Moreover, employer argues that his inability to increase claimant’s salary did not constitute a substantial reduction in wages which would give rise to necessitous and compelling cause for claimant to terminate her employment. We disagree.

[302]*302The law is well settled that mere dissatisfaction with one’s wages is insufficient to establish the necessary justification for terminating employment. Monaco v. Unemployment Compensation Board of Review, 528 Pa. 41, 565 A.2d 127 (1989); World’s Finest Chocolate, Inc. v. Unemployment Compensation Board of Review, 151 Pa.Commonwealth Ct. 370, 616 A.2d 1114 (1992). However, an employee may collect unemployment benefits if he voluntarily ceased employment because the wages or working conditions had substantially changed to the point that voluntary termination was necessary. Monaco.

In the present case, employer agreed to raise claimant’s salary and to cover claimant’s child care expenses. Claimant testified as follows:

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654 A.2d 299, 1995 Pa. Commw. LEXIS 76, Counsel Stack Legal Research, https://law.counselstack.com/opinion/a-positive-electric-v-unemployment-compensation-board-of-review-pacommwct-1995.