CENTER. CLINICS, INC. v. UN. COMP. BD. of R., 67 Pa. Commw. 91 (1982)

445 A.2d 1374

Centerville Clinics, Inc., Petitioner v. Commonwealth of Pennsylvania, Unemployment Compensation Board of Review, Respondent.

Commonwealth Court of Pennsylvania.Argued May 7, 1982
June 7, 1982.

Unemployment compensation — Voluntary termination — Recission of resignation.

1. An employe terminating employment is not rendered eligible for unemployment compensation benefits by rescinding her resignation although the employer had taken no steps to replace the employe, when the effective date of the resignation preceded the attempt to return to work. [93]

Argued May 7, 1982, before Judges BLATT, WILLIAMS, JR. and CRAIG, sitting as a panel of three.

Page 92

Appeal, No. 7 C.D. 1980, from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Marlene Dranzo, No. B-178677.

Application with the Office of Employment Security for unemployment compensation benefits. Application denied. Applicant appealed to the Unemployment Compensation Board of Review. Benefits awarded. Employer appealed to the Commonwealth Court of Pennsylvania. Held: Reversed.

J. Scott Leckie, Yablonski, King, Costello Leckie, for petitioner.

Mark F. Geary, for respondent, Marlene Dranzo.

OPINION BY JUDGE CRAIG, June 7, 1982:

Centerville Clinics, Inc., as employer, questions an order of the Unemployment Compensation Board of Review which awarded benefits to claimant Marlene Dranzo, reversing a referee’s decision that the claimant was ineligible under Section 402(b)(1) of the Unemployment Compensation Law,[1] the voluntary quit disqualification.

Explaining that her immediate resignation on March 30, 1979, was the result of an “emotional outburst” caused by the employer’s act of promoting another employee over her to the position of department head, the claimant admitted leaving work two hours early following a confrontation with her supervisors, but she argues that her attempt later to rescind

Page 93

the resignation[2] rendered her eligible for benefits. After determining that the employer had not taken any steps to replace the claimant before receiving her revocation of the resignation,[3] the board, citing Walker v. Unemployment Compensation Board of Review, 27 Pa. Commw. 522, 367 A.2d 366 (1976), sustained the claimant’s contention.

However, our later decision in Funkhouser v. Unemployment Compensation Board of Review, 53 Pa. Commw. 33, 416 A.2d 646 (1980), is controlling where, as here, the effective date of the claimant’s resignation preceded her attempt to return to work. The testimony clearly indicates that on March 30 the claimant repeatedly assured her supervisors of her intention to resign immediately without notice. As we held i Funkhouser, Walker and the cases which followed it[4] are therefore inapplicable because they all involved examination of an employer’s action to replace an employee who revoked a future-dated resignation before it took effect.

Page 94

Concluding, as a matter of law, that the claimant voluntarily terminated her employment without cause of a necessitous and compelling nature, we reverse.[5]

ORDER
NOW, June 7, 1982, the order of the Unemployment Compensation Board of Review, No. B-178677, dated December 13, 1979, is reversed.

[1] Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897 as amended, 43 P. S. § 802(b)(1).

[2] The claimant’s allegation of an attempt to revoke the resignation by telephone on Saturday, one day later, was controverted by the employer. The written revocation, however, was undisputedly received by the claimant’s supervisor five days after the resignation. In any event, the attempted rescission followed the effective date of the claimant’s resignation.

[3] Before considering the claimant’s appeal from the referee’s denial of benefits, the board ordered a special hearing to gather evidence solely on the issue of whether the employer had taken steps to replace the claimant between Friday, March 30, the date of her oral resignation, and Wednesday, April 4, the date of her written revocation.

[4] Tretter v. Unemployment Compensation Board of Review, 62 Pa. Commw. 69, 434 A.2d 919 (1981); Goughnour v. Unemployment Compensation Board of Review, 54 Pa. Commw. 83, 420 A.2d 30 (1980); Benetz Inn v. Unemployment Compensation Board of Review, 53 Pa. Commw. 314, 417 A.2d 294 (1980); Lovrekovic v. Unemployment Compensation Board of Review, 36 Pa. Commw. 364, 387 A.2d 685
(1978).

[5] Where the party bearing the burden of proof prevails before the board, our scope of review on appeal is to determine whether an error of law has been committed, and whether any necessary finding of fact is unsupported by substantial evidence. Placid v. Unemployment Compensation Board of Review, 58 Pa. Commw. 250, 427 A.2d 748 (1981). Although the board did not decide whether the claimant had cause to resign because of its determination, the referee, who heard testimony on that issue, concluded that the claimant failed to meet her burden of showing necessitous cause. In view of the claimant’s admission, both in her written rescission and at the hearing, that the resignation was the result of emotional duress due to the circumstances, we believe that the referee’s conclusion may not be disturbed. See Fazio v. Unemployment Compensation Board of Review, 57 Pa. Commw. 619, 426 A.2d 1270 (1981).