452 A.2d 294
Commonwealth Court of Pennsylvania.
November 12, 1982.
Unemployment compensation — Burden of proof — Voluntary termination of employment — Necessitous and compelling cause — Scope of appellate review — Resignation — Dissatisfaction with work hours.
1. An unemployment compensation claimant has the burden of proving that his or her voluntary termination of the employment relationship was for cause of a necessitous and compelling nature; and when the party with the burden of proof does not prevail before the Unemployment Compensation Board of Review, the scope of review of the Commonwealth Court of Pennsylvania is limited to a determination of whether an error of law was committed or whether competent evidence was capriciously disregarded in making the necessary factual findings. [648]
2. In an unemployment compensation case, once an employee submits a resignation which sets in motion the process whereby a replacement is hired, his subsequent unemployment is deemed a voluntary termination, rather than a discharge, when the employer elects to retain the replacement upon an attempt by the employee to withdraw the resignation. [648]
3. A mere dissatisfaction with work hours is not a cause of a necessitous and compelling nature that would justify an unemployment compensation claimant’s voluntary termination of employment. [649]
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Submitted on briefs September 15, 1982, to President Judge CRUMLISH, JR. and Judges BLATT and DOYLE, sitting as a panel of three.
Appeal, No. 2968 C.D. 1980, from the Order of the Unemployment Compensation Board of Review in the case of In Re: Claim of Clyde Altemose, Jr., No. B-156360-C.
Application to the Bureau of Employment Security for unemployment compensation benefits. Application denied and non-fault overpayment determined. Applicant appealed. Referee affirmed denial of benefits and ordered repayment of fault overpayment. Applicant appealed to the Unemployment Compensation Board of Review. Appeal sustained. Benefits ordered. Employer appealed to the Commonwealth Court of Pennsylvania. Case remanded. Benefits ordered. Employer appealed to the Commonwealth Court of Pennsylvania. Case remanded. (53 Pa. Commw. 356.) Benefits denied. Applicant appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed in part and reversed in part.
John J. Robinson, Jr., for petitioner.
William J. Kennedy, Associate Counsel, with him Richard L. Cole, Jr., Chief Counsel, for respondent.
No appearance for intervenor.
OPINION BY JUDGE BLATT, November 12, 1982:
Clyde Altemose, Jr. (claimant) appeals a decision of the Unemployment Compensation Board of Review (Board) which denied him benefits on the basis that he voluntarily terminated his employment without cause of a necessitous and compelling nature.[1]
Page 647
The claimant was employed by the Effort Foundry, Inc. (employer) as a grinder. He testified that, upon the advice of his physician, he informed his employer that an ailment involving particles in his left eye made him unable to perform his duties. His employer then offered him a position on the second shift (3:30 p.m. to 12:00 a.m.) which would not involve grinding, but the claimant responded that he could not “hack” second shift and he refused to discuss or consider the job any further.[2] A few days after quitting, however, he returned to his former employer and asked if he could have the second shift job. The position having already been filled, he then applied for benefits. The Bureau (now Office) of Employment Security found him to be eligible and he received approximately $1322 in benefits for the weeks November 5, 1977 through January 21, 1978. On January 26, 1978, the Bureau revised its determination and found that Section 402(b)(1) of the Law rendered him ineligible for benefits because his unemployment was due to his voluntary termination of his employment without cause of a necessitous and compelling nature. The Bureau also determined that he had received a non-fault overpayment under Section 804(b) of the Law, 43 P. S. § 874(b), for the weeks he had received benefits. Upon appeal, the referee agreed that the claimant was ineligible under Section 402(b)(1) and in addition, even though neither side challenged the Bureau’s Section 804(b) determination, found that the claimant had received a $1322 fault overpayment and ordered that it be recouped[3]
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under Section 804(a) of the Law. The claimant then appealed to the Board which, discussing the voluntary termination issue but not the repayment order, affirmed the referee’s decision. The instant appeal followed.
Before us the claimant first argues that the evidence in the record does not support the Board’s findings. It is well-settled that a claimant, in order to be eligible for benefits under Section 402(b)(1) of the Law, must bear the burden of proving that his or her voluntary termination of the employment relationship was for cause of a necessitous and compelling nature. Martin v. Unemployment Compensation Board of Review, 36 Pa. Commw. 304, 387 A.2d 998 (1978). And where, as here, the party with the burden of proof has not prevailed below, our scope of review is limited to a determination of whether an error of law was committed or competent evidence was capriciously disregarded in making the necessary factual findings. Querry v. Unemployment Compensation Board of Review, 63 Pa. Commw. 170, 437 A.2d 1048
(1981).
After carefully reviewing the record and noting that a great deal of conflicting testimony was given below, we cannot say that the Board capriciously disregarded competent evidence in resolving such conflict in the employer’s favor and in arriving at its findings of fact. We have recognized in Lovrekovic v. Unemployment Compensation Board of Review, 36 Pa. Commw. 364, 366, 387 A.2d 685, 686 (1978), that “[o]nce an employee submits a resignation which sets in motion the process whereby a replacement is hired his subsequent unemployment is deemed a voluntary termination, rather than a discharge, when the employer elects to retain the replacement upon an attempt by an employee to withdraw the resignation.” See also O’Connor v. Unemployment
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Compensation Board of Review, 50 Pa. Commw. 573, 413 A.2d 458 (1980). And it is clear that a mere dissatisfaction with work hours is not a cause of a necessitous and compelling nature, such as to justify a claimant’s voluntary termination of his employment. Stalc v. Unemployment Compensation Board of Review, 13 Pa. Commw. 131, 318 A.2d 398 (1974). We believe, therefore, that the Board did not commit an error of law in concluding on the basis of its factual findings that this claimant was ineligible for benefits under Section 402(b)(1) of the Law.
The claimant next argues that he should not be subject to repayment, as provided for by Section 804 (a) of the Law, for the $1322 in benefits he received because the referee erred in reversing the Bureau’s determination that the overpayment was non-fault in nature under Section 804(b). We note that the Board in its brief “concedes that there is not a sufficient evidentiary basis in the record for concluding that the claimant received a fault overpayment of benefits under Section 804(a) . . . and that the overpayment totaling $1322 . . . must be treated [as non-fault] under Section 804(b). . . .” (Emphasis in original.)
We will, therefore, affirm the Board’s order insofar as it states that this claimant is ineligible for benefits, but we must reverse the order to the extent that it upholds the referee’s determination that the claimant is subject to repayment.
ORDER
AND NOW, this 12th day of November, 1982, the order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby affirmed insofar as it finds this claimant ineligible for benefits but reversed to the extent that it upholds the referee’s determination that the claimant received a
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fault overpayment of $1322 repayable under Section 804(a) of the Law, 43 P. S. § 874(a).
It is further ordered that the Office of Employment Security’s determination that the overpayment which the claimant received be deemed non-fault and subject to the recoupment provisions of Section 804 (b) of the Law, 43 P. S. § 874
(b), is hereby reinstated.
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