Evans, Portnoy & Quinn v. Unemployment Compensation Board of Review

665 A.2d 548, 1995 Pa. Commw. LEXIS 435
CourtCommonwealth Court of Pennsylvania
DecidedSeptember 18, 1995
StatusPublished
Cited by9 cases

This text of 665 A.2d 548 (Evans, Portnoy & Quinn 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
Evans, Portnoy & Quinn v. Unemployment Compensation Board of Review, 665 A.2d 548, 1995 Pa. Commw. LEXIS 435 (Pa. Ct. App. 1995).

Opinions

KELLEY, Judge.

Evans, Portnoy & Quinn (employer) petition for review of an order of the Unemployment Compensation Board of Review which affirmed a referee’s decision finding Lori A. Retort (claimant) eligible for benefits. We reverse.

The relevant facts as found by the referee and adopted by the board1 are as follows:

1. For purposes of this appeal, the claimant was last employed as a part-time law clerk by Evans, Portney [sic], & Quinn, Attorneys-at-Law, at a final hourly rate of $8.50 and her last day of work was April 30, 1992.
2. The claimant, at the time of hire, was a second year law student and was hired as a full-time law clerk during the summer of 1991 and thereafter to continue as a part-time law clerk during the 1991-1992 school year.
3. The terms of employment provided that the claimant’s employment would be terminated effective the end of the 1991-1992 school year.
4. The employer hired new legal interns to begin on or about May 28, 1993
5. The claimant ended her employment effective April 30, 1992 in order to study for final exams.

Referee’s Decision, August 18, 1993, at 1, Findings of Fact Nos. 1-5.

Claimant applied and was granted benefits for several weeks in March and April of 1993 by the Office of Employment Security (OES) pursuant to sections 402(a), 402(b) and 401(d) of the Unemployment Compensation Law (Law).3 Employer appealed to a referee, asserting that claimant’s voluntary quit without cause of a necessitous or compelling nature rendered her ineligible for benefits.

After a hearing at which both parties presented evidence, the referee awarded claimant benefits in a decision dated August 18, 1993. In support of his decision, the referee noted that although claimant’s voluntary quit may have rendered her ineligible for benefits during the remaining period of her agreed upon employment dates, April 30,- 1992 through May 28, 1992, claimant’s application for benefits was for subsequent weeks. Finding that after May 28, 1992, claimant was able and available for suitable work pursuant to section 401(d) of the Law, 43 P.S. § 801(d)(1), the referee determined that claimant was not disqualified from receiving benefits. Employer appealed and the board affirmed.

Before this court4 employer raises the following issues: (1) whether the board [551]*551erred in finding claimant eligible for unemployment compensation benefits despite the fact that claimant voluntarily quit her employment without cause of a necessitous and compelling nature and without requesting to renew or extend the duration of her employment agreement; (2) whether the board improperly applied standards applicable to section 401(d)(1) of the Law, 43 P.S. § 801(d)(1), in making a determination under section 402(b) of the Law, 43 P.S. § 802(b); and (3) whether the board erred in failing to consider or find that claimant’s exclusive remedy was for breach of contract.

Initially, employer contends that the board erred in finding claimant eligible for unemployment compensation benefits. Section 402(b) of the law, 43 P.S. § 802(b), provides that an employee is ineligible for benefits for any week in which unemployment is due to the employee’s voluntary separation from work without cause of a necessitous and compelling nature. The question of whether particular facts constitute a voluntary quit is a question of law. Chamoun v. Unemployment Compensation Board of Review, 116 Pa.Commonwealth Ct. 499, 542 A.2d 207 (1988). A claimant who voluntarily quits a job bears the burden of proving that the termination was caused by reasons of a necessitous and compelling nature. Kligge v. Unemployment Compensation Board of Review, 89 Pa.Commonwealth Ct. 30, 491 A.2d 325 (1985). Quitting one’s employment in anticipation of termination is not cause of a necessitous and compelling nature. Charles v. Unemployment Compensation Board of Review, 122 Pa.Commonwealth Ct. 439, 552 A.2d 727 (1989). There is no dispute in the matter sub judice that claimant voluntarily quit her employment and has not shown that her separation was for cause of a necessitous and compelling nature.

Although claimant was ineligible for benefits under section 402(b) of the Law, the referee found that after May 28, 1992, claimant was able and available for suitable work and therefore could not be denied benefits under the provisions of section 401(d)(1) of the Law, 43 P.S. § 801(d)(1).5 Employer contends that the referee’s application of section 401 effectively emasculates the voluntary quit disqualification of section 402(b) of the Law.

The board urges us to affirm its decision and presents the following OES regulation to advance its position;

§ 65.62. Duration of disqualification.
(a) A claimant who has been determined ineligible for compensation under section 402(a) of the law (43 P.S. § 802(2) [sic]) shall remain ineligible for compensation until he obtains subsequent employment which is not of a temporary or casual nature.
(b) When a claimant has been declared ineligible because of a refusal of temporary or casual employment, the ineligibility shall continue only for the period of time that work would have been furnished. (Emphasis added).
(c) A claimant who has been determined ineligible for compensation under the provisions of section 3 of the law (43 P.S. § 752) shall remain ineligible until he has earned, subsequent to the separation from work which was disqualifying under such section, renumeration for services in an amount equal to or in excess of six times his weekly benefit amount.

34 Pa.Code § 65.62.

In support of its argument that 34 Pa.Code § 65.62(b) is applicable to the present controversy, the Board cites Winterle v. Unemployment Compensation Board of Review, 65 Pa.Commonwealth Ct. 486, 442 A.2d 1211 (1982). In Winterle, a temporary employee refused a third temporary assignment and quit her job to seek permanent employment. Although rejecting claimant’s argument that she had good cause for leaving her employment, this court found 34 Pa.Code § 65.62(b) to be applicable and remanded the matter for [552]*552consideration of claimant’s eligibility for benefits under this regulation.

Clearly, Winterle is distinguishable from the case sub judice. The claimant in Winterle did not voluntarily quit a work assignment in progress but instead refused another temporary assignment. The limitation on ineligibility provided by 34 Pa.Code § 65.62(hi applies to claimants who refuse temporary or casual employment opportunities and does not confer eligibility upon employees disqualified as a matter of law under section 402(b). Thus, we conclude that this court’s decision in

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Bluebook (online)
665 A.2d 548, 1995 Pa. Commw. LEXIS 435, Counsel Stack Legal Research, https://law.counselstack.com/opinion/evans-portnoy-quinn-v-unemployment-compensation-board-of-review-pacommwct-1995.