Pacini v. Commonwealth

511 A.2d 940, 102 Pa. Commw. 355, 1986 Pa. Commw. LEXIS 2731
CourtCommonwealth Court of Pennsylvania
DecidedDecember 4, 1986
DocketAppeal, No. 1422 C.D. 1985
StatusPublished
Cited by19 cases

This text of 511 A.2d 940 (Pacini v. Commonwealth) 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
Pacini v. Commonwealth, 511 A.2d 940, 102 Pa. Commw. 355, 1986 Pa. Commw. LEXIS 2731 (Pa. Ct. App. 1986).

Opinion

Opinion by

Judge Colins,

Chester C. Pacini (petitioner) appeals an order of the Unemployment Compensation Board of Review (Board) which affirmed a referees decision finding him ineligible for unemployment compensation benefits on account of his voluntary termination.1

Petitioner had been employed by A & P Tea Company as a clerk for thirty-nine and one-quarter (39*/4) years when he terminated his employment. Petitioner [357]*357felt that he had no choice but to terminate his employment since, under the soon-to-be-ratified collective bargaining agreement which would control the terms of his employment, petitioner believed that he faced yearly reductions from his pension plan, as well as reductions in pay and vacation time. Under these circumstances, petitioner accepted an offer from his employer and retired at age fifty-eight (58) in order to preserve his pension plan.

After a hearing,2 the referee determined that petitioner had voluntarily retired from his employment and was ineligible for benefits. The Board affirmed the decision of the referee, and this appeal followed.

The issue before this Court is whether the Board erred in concluding that petitioner had voluntarily terminated his position without necessitous and compelling cause.

In unemployment compensation cases, the claimant has the burden of proving eligibility for benefits. Hughes v. Unemployment Compensation Board of Review, 51 Pa. Commonwealth Ct. 448, 450, 414 A.2d 757, 758 (1980). Where a claimant has voluntarily terminated his work, the claimant bears the burden of proving that such termination was with cause of a necessitous and compelling nature. Borman v. Unemployment Compensation Board of Review, 12 Pa. Commonwealth Ct. 241, 316 A.2d 679 (1974).

In light of our Supreme Courts recent decision in Estate of McGovern v. State Employes’ Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986), our scope of review is limited to a determination of whether constitutional rights have been violated, an error of law has [358]*358been committed, or whether any necessary findings of fact made by the agency are not supported by substantial evidence. See abo Section 704 of the Administrative Agency Law, 2 Pa. C. S. §704. Bound as we are by this scope of review, we are compelled to affirm the Boards determination.

The gist of petitioners argument is that he faced extremely disadvantageous economic terms under the proposed collective bargaining agreement and, thus, had no choice but to terminate his employment. For this reason, petitioner argues that he deserves unemployment compensation because his termination was involuntary, or, put another way, his termination, although voluntary, was the result of necessitous and compelling cause.

In support of his position, petitioner cites National Aluminum Corp. v. Unemployment Compensation Board of Review, 59 Pa. Commonwealth Ct. 359, 429 A.2d 1259 (1981) and Morysville Body Works, Inc. v. Unemployment Compensation Board of Review, 59 Pa. Commonwealth Ct. 486, 430 A.2d 376 (1981) which stand for the respective propositions that: (1) a substantial unilateral change in the terms and conditions of employment is cause of a necessitous and compelling nature; and (2) a substantial reduction in pay can constitute necessitous and compelling cause.

The issue of whether termination is regarded as voluntary or involuntary is ultimately a question of law. However, the resolution of that question is dependent upon the underlying facts as found by the compensation authorities. Re David v. Unemployment Compensation Board of Review, 56 Pa. Commonwealth Ct. 547, 550, 425 A.2d 71, 72 (1981) (citations omitted). In reaching a determination, the Board must consider the totality of the circumstances in determining whether petitioners termination was voluntary or involuntary. Philadelphia [359]*359Parent Child Center, Inc. v. Unemployment Compensation Board of Review, 44 Pa. Commonwealth Ct. 452, 403 A.2d 1362 (1979).

In the case sub judice, the referee and subsequently the Board took into consideration all of the factors raised by the petitioner as grounds for involuntary termination. In so doing, the Board met the requirement that it consider all the circumstances which might have a bearing on whether petitioners termination was voluntary or involuntary. Additionally, the referees findings of fact Nos. 2, 3, 4, 7, and 8 established that petitioner was a union member who voluntarily retired prior to the ratification of a new collective bargaining agreement in order to protect a potential reduction in pension, salary, and benefits.

In approving these findings, the Board recognized that there was substantial evidence3 in support of the referees denial of benefits. Therefore, the only issue before this Court is whether the Board has made an error of law in concluding that petitioner had voluntarily terminated his employment without necessitous and compelling cause.

The Board, in reaching its conclusion, was, no doubt, strongly influenced by the fact that the proposed changes in petitioners terms of employment were the subject matter of negotiations to which petitioner, as a member of the United Food and Commercial Workers Union, was a party. This fact rebuts petitioners argument that the proposed terms of employment were the result of unilateral action by the employer.

[360]*360Furthermore, the Board, in all likelihood, was influenced in reaching its conclusion by the feet that the gravamen of petitioners argument is that the proposed reductions in his pension plan forced him to terminate his employment. Yet, an analysis of the proposed reductions indicates that they were not substantial enough to compel petitioners retirement. This renders petitioners second argument inoperative.

The petitioner’s base pay (gross weekly pay irrespective of overtime) was $321.00 per week at the time of termination. Therefore, the proposed $10.00 weekly reduction in petitioner’s pay amounted to a 3.1 percent pay cut. Although this Court recognizes no talismanic percentage figure governing reductions in pay, clearly a 3.1 percent pay cut is not a substantial figure sufficient to establish necessitous and compelling cause. See Ship Inn, Inc. v. Unemployment Compensation Board of Review, 50 Pa. Commonwealth Ct. 292, 412 A.2d 913 (1980) (wherein a 22 percent cut in a waitress’ salary from $67.80 per week to $52.80 per week was held to be necessitous and compelling cause for termination).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Jacobs v. Unemployment Compensation Board of Review
129 A.3d 639 (Commonwealth Court of Pennsylvania, 2015)
Middletown Township v. Unemployment Compensation Board of Review
40 A.3d 217 (Commonwealth Court of Pennsylvania, 2012)
Middletown Tp. v. UNEMP. COMPENSATION BD.
40 A.3d 217 (Commonwealth Court of Pennsylvania, 2012)
Elliott Co. v. Unemployment Compensation Board of Review
29 A.3d 881 (Commonwealth Court of Pennsylvania, 2011)
Philadelphia Housing Authority v. Unemployment Compensation Board of Review
29 A.3d 99 (Commonwealth Court of Pennsylvania, 2011)
Oliver v. Unemployment Compensation Board of Review
29 A.3d 95 (Commonwealth Court of Pennsylvania, 2011)
Petrill v. Unemployment Compensation Board of Review
883 A.2d 714 (Commonwealth Court of Pennsylvania, 2005)
Chavez v. Unemployment Compensation Board of Review
738 A.2d 77 (Commonwealth Court of Pennsylvania, 1999)
Johnson v. Unemployment Compensation Board of Review
723 A.2d 730 (Commonwealth Court of Pennsylvania, 1998)
Flannery v. UN. COMP. BD. OF REV.
557 A.2d 52 (Commonwealth Court of Pennsylvania, 1989)
LaFramboise v. Commonwealth, Unemployment Compensation Board of Review
543 A.2d 627 (Commonwealth Court of Pennsylvania, 1988)
Worobec v. UN. COMP. BD. OF REV.
536 A.2d 467 (Commonwealth Court of Pennsylvania, 1988)
Centre Area Transportation Authority v. Commonwealth
531 A.2d 1172 (Commonwealth Court of Pennsylvania, 1987)
Fleeger v. UN. COMP. BD. OF REV.
528 A.2d 264 (Commonwealth Court of Pennsylvania, 1987)
St. Barnabas, Inc. v. UN. COMP. BD. OF REV.
525 A.2d 885 (Commonwealth Court of Pennsylvania, 1987)
Nicotero v. Commonwealth
525 A.2d 485 (Commonwealth Court of Pennsylvania, 1987)
Peeples v. Commonwealth
522 A.2d 680 (Commonwealth Court of Pennsylvania, 1987)

Cite This Page — Counsel Stack

Bluebook (online)
511 A.2d 940, 102 Pa. Commw. 355, 1986 Pa. Commw. LEXIS 2731, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pacini-v-commonwealth-pacommwct-1986.