Middletown Township v. Unemployment Compensation Board of Review , 40 A.3d 217 ( 2012 )

OPINION BY

Judge BROBSON.

Petitioner Middletown Township (Employer) petitions for review of an order of the Unemployment Compensation Board of Review (Board), which affirmed, as modified, a decision and order of a Referee, thereby granting unemployment compensation benefits to Raymond A. Stepno-ski (Claimant). For the reasons set forth below, we affirm on alternative grounds.

Claimant was employed as the Township Manager by Employer until Employer’s Board of Supervisors voted not to renew Claimant’s contract. Thereafter, Employer and Claimant unsuccessfully attempted to negotiate a new employment agreement. Claimant ceased working for Employer on July 8, 2010, and he applied for unemployment benefits. The Allentown UC Service Center (Service Center) noted that there was a conflict between whether Claimant quit or was discharged, and it found that Claimant voluntarily quit his employment. (Certified Record (C.R.), Item No. 3.) The Service Center then determined that Claimant was ineligible for unemployment benefits under Section 402(b) of the Unemployment Compensation Law (Law),² because he voluntarily terminated his employment without cause of a necessitous and compelling nature. (Id.) Claimant appealed.

During the hearing before the Referee, Claimant testified to the circumstances surrounding his separation from employment. (Reproduced Record (R.R.), Item No. 7a.) Claimant testified that Employer’s Board of Supervisors voted on June 7, 2010, to invoke the termination clause in his employment contract, which was set to expire on July 9, 2010, because “they [did not] like the contract.”³ (Id. at p. 5.) Instead, the Board of Supervisors wanted a contract that provided less compensation and fewer benefits and eliminated Claimant’s vehicle allowance. (Id. at p. 6.) Employer informed Claimant by letter dated June 8, 2010, that the Board of Supervisors voted to terminate his employment prior to its automatic renewal date. (Id.) Employer also notified him that the letter served as his thirty-day written notice of termination, consistent with his employment contract.⁴ (Id.) Claimant fulfilled his obligations under his employment agreement and worked until July 8, 2010. (Id. at p. 7.) The contract’s anniversary date was July 9th for purposes of renewal.

On cross-examination, Claimant testified that he spoke with Tracy Hunt, Employer’s counsel, on a few occasions prior to July 8, 2010, regarding a proposed new contract. (Id. at p. 10.) Claimant also acknowledged receiving a letter from Employer’s counsel, dated July 7, 2010 (the day before his last day of employment), wherein Employer’s counsel stated that they had met two weeks earlier and that Employer’s counsel had advised Claimant that Employer was offering a new employment contract centered on certain enumerated provisions. (Id. at p. 11-18.) The letter also accurately recited the terms of Claimant’s counter-offer.⁵ (Id.) Claimant also testified on cross-examination that he did not accept the terms that were offered because he asked for a contract and never received one.⁶ (Id. at p. 15.)

Following a hearing, the Referee issued a decision and order, reversing the Service Center’s determination, thereby granting Claimant unemployment compensation benefits. (C.R., Item No. 14.) Although the Referee agreed with the Service Center’s determination that Claimant had voluntarily quit his employment, the Referee concluded that Claimant established necessitous and compelling reason for voluntarily leaving his employment based upon Employer’s proposed substantial unilateral changes to the terms and conditions of Claimant’s employment, including reductions in remuneration, subsequent to Employer’s decision not to renew Claimant’s previous employment agreement. (Id.)

Employer appealed to the Board, which affirmed the Referee’s decision and order with modification. (C.R., Item No. 19.) Contrary to the Referee’s decision, the Board determined that Claimant had been discharged from his employment, but that Employer failed to prove that the discharge was for willful misconduct. (Id.) In so doing, the Board made the following findings of fact:

1. The claimant was last employed as the township manager by Middle-town Township for two years and his last day of work was July 8, 2010.

2. The claimant was employed under an employment agreement that provided for automatic renewal each year on July 9 unless the Township Board of Supervisors (employer) gave the claimant 30 days notice that it was not renewing his contract.

3. On June 7, 2010, the employer voted not to renew the claimant’s contract.

4. On June 8, 2010, the employer sent the claimant a letter stating that it was not renewing his contract.

5. Subsequent to the nonrenewal, the employer attempted to negotiate a new contract with the claimant that eliminated the automatic renewal provision, eliminated the automatic pay raise, eliminated a $500.00 car allowance, required the claimant to contribute toward medical benefits and revised the severance package.

6. The claimant provided the employer with a counteroffer, which the employer rejected.

7. The claimant fulfilled his obligations under the existing contract by working until through [sic] July 8, 2010.

8. The employer terminated the claimant’s employment when it voted not to renew his contract.

(Id.)

In determining that Employer discharged Claimant and failed to prove that it discharged Claimant for willful misconduct, the Board reasoned that it is undisputed that Employer voted on June 7, 2010, to terminate Claimant’s employment contract, with his last day of employment being July 8, 2010. (Id.) After Claimant’s contract was terminated, Employer attempted to negotiate a new contract, but the negotiations were unsuccessful. (Id.) For those reasons, the Board concluded that Claimant’s separation was involuntary. (Id.) Thus, Employer had the burden to prove that Claimant’s discharge was for willful misconduct in connection with his work, in accordance with Section 402(e) of the Law.⁷ (Id.) Employer did not allege that Claimant’s actions were unsatisfactory, and, therefore, the Board must conclude that Employer failed to prove willful misconduct. (Id.) The Board noted that even if Claimant had voluntarily quit his employment, he would have had cause of a necessitous and compelling nature because Employer was attempting to make unilateral and substantial changes in the terms and conditions of Claimant’s employment. (Id.) Employer petitioned this Court for review of the Board’s order.

On appeal,⁸ Employer essentially argues that the Board’s finding that Employer terminated Claimant’s employment when it voted not to renew his employment contract is not supported by substantial evidence. Employer also argues that the Board committed an error of law when it analyzed Claimant’s entitlement to benefits under Section 402(e) of the Law, relating to discharge for willful misconduct, because it should have analyzed the matter under Section 402(b) of the Law, relating to voluntary termination of employment without cause of a necessitous and compelling nature. Applying the alternative analysis offered by the Board under Section 402(b) of the Law, Employer argues that the Board committed an error of law when it concluded that Claimant had cause of a necessitous and compelling nature for voluntarily terminating his employment.

First, we will address Claimant’s argument that substantial evidence does not exist to support the Board’s findings that Employer terminated Claimant’s employment. Substantial evidence is defined as relevant evidence upon which a reasonable mind could base a conclusion. Johnson v. Unemployment Comp. Bd. of Review, 94 Pa.Cmwlth. 24, 502 A.2d 738, 740 (1986). In determining whether there is substantial evidence to support the Board’s findings, this Court must examine the testimony in the light most favorable to the prevailing party, giving that party the benefit of any inferences that can logically and reasonably be drawn from the evidence. Id. A determination as to whether substantial evidence exists to support a finding of fact can only be made upon examination of the record as a whole. Taylor v. Unemployment Comp. Bd. of Review, 474 Pa. 351, 355, 378 A.2d 829, 831 (1977). The Board’s findings of fact are conclusive on appeal only so long as the record, taken as a whole, contains substantial evidence to support them. Penflex, Inc. v. Bryson, 506 Pa. 274, 286, 485 A.2d 359, 365 (1984). “The fact that [a party] may have produced witnesses who gave a different version of the events, or that [the party] might view the testimony differently than the Board is not grounds for reversal if substantial evidence supports the Board’s findings.” Tapco, Inc. v. Unemployment Comp. Bd. of Review, 168 Pa.Cmwlth. 292, 650 A.2d 1106 (1994). Similarly, even if evidence exists in the record that could support a contrary conclusion, it does not follow that the findings of fact are not supported by substantial evidence. Johnson v. Unemployment Comp. Bd. of Review, 95 Pa.Cmwlth. 183, 504 A.2d 989, 990 (1986).

Employer appears to argue that substantial evidence of record does not exist to support the Board’s findings that “[a]fter the claimant’s contract was terminated, the employer attempted to negotiate a new contract” and “[t]he employer terminated the claimant’s employment when it voted not to renew his contract.” (Board opinion, Finding of Fact (F.F.) nos. 3 and 8, respectively.) Instead, Employer argues, its Board of Supervisors, who are responsible for hiring the Township Manager, merely voted on June 7, 2010, to not renew the then-existing contract of employment under the then-existing terms. Concurrently, the Board of Supervisors instructed its counsel to enter into negotiations with Claimant for a new employment agreement. Employer then gave Claimant the thirty-day notice required by the then-existing employment agreement, and it “stood ready to renew Claimant in his role as Township Manager under new terms fairly arrived at via a negotiated process, prior to the existing contract’s anniversary date of July 9, 2010.” (Employer’s brief at 7.) Employer contends that it made an offer to employ Claimant at the same salary level, but with a modest reduction in certain fringe benefits, which Claimant rejected. Instead, Claimant counter-offered, seeking increased salary and fringe benefits, which Employer rejected. No agreement was reached prior to the expiration of the existing contract. For those reasons, Employer argues that substantial evidence does not exist to support findings that Employer terminated Claimant’s employment. Rather, Claimant voluntarily left employment when his contract expired under its own terms and negotiations failed to produce a new employment contract.

Claimant counters that substantial evidence exists to support findings that Employer terminated his employment because Employer (not Claimant) took action to terminate his employment when the Board of Supervisors voted to invoke the termination clause of the employment contract (which otherwise would have renewed automatically on July 9, 2010), and informed him of his termination via letter dated June 8, 2010. Claimant counters that it is irrelevant that Employer sought to negotiate new contract terms after if terminated his employment.

We agree with Claimant that substantial evidence of record exists to support the specific findings that “[ajfter the claimant’s contract was terminated, the employer attempted to negotiate a new contract” and “[t]he employer terminated the claimant’s employment when it voted not to renew his contract.” (Board’s opinion, F.F. nos. 3 and 8, respectively.) Based upon the evidence summarized above, a reasonable person could find that Employer made a decision on June 7, 2010, to terminate Claimant’s employment, effective July 8, 2010 (the last day Claimant worked and the date on which his then-existing employment contract expired) and, thereafter, attempted to negotiate a new contract with Claimant. As we will discuss below, however, such findings do not render irrelevant the fact that Employer sought to negotiate a new contract after it informed Claimant that his employment was terminated.

Next, we will address Employer’s argument that the Board committed an error of law when it analyzed Claimant’s entitlement to benefits under Section 402(e) of the Law, relating to discharge for willful misconduct, because it should have analyzed the matter under Section 402(b) of the Law, relating to voluntary termination of employment without cause of a necessitous and compelling nature. We agree with Employer that the Board should have analyzed this matter under Section 402(b) of the Law.

Whether a Claimant’s separation from employment is the result of a voluntary action or a discharge is a question of law subject to this Court’s review and must be determined from a totality of the facts surrounding the cessation of employment. Key v. Unemployment Comp. Bd. of Review, 687 A.2d 409, 412 (Pa.Cmwlth. 1996). “It is a claimant’s burden to prove that his separation from employment was a discharge.” Key, 687 A.2d at 412. If a claimant proves that he was discharged, then the burden to prove that the claimant was discharged for willful misconduct is on the employer. Id. at 412-13. If a claimant fails to prove that he was discharged, then the claimant has the burden to prove necessitous and compelling reasons for quitting. See Empire Intimates v. Unemployment Comp. Bd. of Review, 655 A.2d 662, 664 (Pa.Cmwlth.1995).

In Hospital Service Association of Northeastern Pennsylvania v. Unemployment Compensation Board of Review, 83 Pa.Cmwlth. 165, 476 A.2d 516 (1984), this Court explained that “[claimants who, while employed, refuse to accept an offer of continued employment are deemed to have quit their position, and are thus subject to Section 402(b) of the [Law], which denies compensation to a claimant who ‘voluntarily [leaves] work without cause of a necessitous and compelling nature.’” Hospital Serv. Ass’n of Ne. Pa. v. Unemployment Comp. Bd. of Review, 476 A.2d at 518 (emphasis and alteration in original). In Hospital Service Association, the claimants were employed as claims processors, and they worked for employer during the night shift. The employer informed the claimants in March that the night shift would be eliminated in May of that year, but that each claimant could continue employment after that date by accepting a position on the day shift. The claimants rejected the offer of continued employment, citing child care needs. Again in May, the employer offered the claimants continued work on the day shift, which they rejected due to their conflicting childcare obligations. The claimants subsequently left work upon elimination of the night shift in May, and they filed for unemployment compensation benefits. On appeal to this Court, we considered whether Section 402(b) of the Law or Sections 402(a) and 402(a)(1) of the Law⁹ applied. In so doing, we noted that there was no contention that an offer of suitable employment was made after the claimants became unemployed. Rather, the claimants remained employed at the time that offers of continued employment were made in March and May. For that reason, we concluded that the Board properly applied Section 402(b) of the Law, relating to voluntarily leaving work without cause of a necessitous and compelling nature.

In Delaney v. Unemployment Compensation Board of Review, 138 Pa.Cmwlth. 107, 574 A.2d 1198 (1990), a claimant was employed at an investment firm that was going to be purchased by another company (other employees). In anticipation of the other employees taking control of the firm, the firm offered the claimant a written employment contract establishing the terms of the claimant’s continued employment. The claimant refused to sign the employment contract, and he was laid off by the other employees before they took control of the firm. The claimant applied for unemployment compensation benefits, which the UC Service Center denied under Sections 402(a) and 402(h) of the Law.¹⁰ Following a hearing, the referee determined that the claimant’s separation fell under Section 402(b) of the Law, and the referee denied benefits. The Board concluded, however, that the claimant was disqualified to receive benefits under Section 402(a) of the Law. On appeal, this Court reversed. Applying the reasoning set forth in Hospital Service Association, we held that the claimant was deemed to have quit his position because he refused to accept an offer of continued employment. Thus, Section 402(b) of the Law was applicable.

This Court in Shrum v. Unemployment Compensation Board of Review, 690 A.2d 796 (Pa.Cmwlth.1997), applying the reasoning set forth in Delaney, considered whether a claimant’s separation from employment was due to a voluntary quit under Section 402(b) of the Law or a discharge under Section 402(e) of the Law, just as this Court must consider in the case now before it. In Shrum, the claimant was employed as a technical writer of instructions for product documentation in the use of computer software and worked under a confidentiality agreement. The company for which she worked was acquired by another company. The employer (either the original company or the acquiring company) requested employees to sign, on a take-it-or-leave-it basis, a new confidentiality agreement that imposed more restrictions on employees in order to work for the acquiring company. The claimant refused to sign the confidentiality agreement “because she believed that it would significantly change the terms and conditions of her employment.” Shrum, 690 A.2d at 799. The employer then asked the claimant to resign. When she refused to resign, the employer escorted her off the premises. The referee in Shrum granted benefits under Section 402(e) of the Law, having determined that the employer discharged the claimant and that the employer failed to establish that the claimant engaged in willful misconduct. The Board reversed, concluding that the claimant voluntarily resigned her position without cause of a necessitous and compelling nature under Section 402(b) of the Law. On appeal, we noted in Shrum that the claimant knew that she would lose her job if she refused to sign the agreement and that “[b]y refusing to sign, [the cjlaim-ant chose to refuse an opportunity for continued employment.” Id. at 800. Thus, we concluded that the claimant’s refusal constituted a voluntary resignation from her employment, and we then considered whether necessitous and compelling reasons existed to voluntarily terminate the employment relationship.

A review of the above case law reveals that the concept set forth in Hospital Service Association to determine whether Sections 402(a) and 402(a)(1) of the Law or Section 402(b) of the Law apply — that “[cjlaimants who, while employed, refuse to accept an offer of continued employment are deemed to have quit their position, and are thus subject to Section 402(b) of the [Law], which denies compensation to a claimant who ‘voluntarily [leaves] work without cause of a necessitous and compelling nature’ ” — applies equally to determining whether Section 402(b) of the Law or Section 402(e) of the Law apply. Hospital Service Association, 476 A.2d at 518 (emphasis and alteration in original).

In order to determine whether the Board properly determined that Section 402(e) of the Law applies to the instant matter, we must examine the findings of fact issued by the Board. In addition to finding that Employer voted on June 7, 2010, to terminate Claimant’s employment, effective July 8, 2010, the Board found that “subsequent to the non-renewal, the employer attempted to negotiate a new contract,” which Claimant did not accept. (Board’s opinion, F.F. no. 5.) The Board also found that Claimant presented Employer with a counter-offer, which Employer rejected. (Id., F.F. no. 6.)

A review of the findings of fact reveals that this situation is most akin to the situation before the Court in Hospital Service Association. Here, although Employer voted on June 7, 2010, to terminate Claimant’s employment, Claimant remained employed by Employer through July 8, 2010. These circumstances are similar to those in Hospital Service Association, where the employer informed the claimants in March that their employment would be terminated in May. In both cases, the claimants were notified of their termination prior to the effective date of their termination and continued their employment until the effective date of their termination. Furthermore, in the case now before us, prior to July 8, 2010 (the effective date of his termination), Claimant rejected Employer’s offer of a new contract that would have allowed Claimant to remain employed by Employer. In other words, Claimant, while employed, refused to accept an offer of continued employment. Again, this is akin to the claimants’ refusal in Hospital Service Association to accept the employer’s offer of continued work on a different shift. Thus, under the reasoning set forth in Hospital Service Association and its progeny (Delaney and Shrum), Claimant is deemed to have quit his position, because, while employed, he refused to accept an offer of continued employment. Claimant, therefore, is subject to Section 402(b) of the Law, “which denies compensation to a claimant who ‘voluntarily [leaves] work without cause of a necessitous and compelling nature.’ ”¹¹ Hospital Service Association, 476 A.2d at 518 (alteration in original). The Board committed an error of law to the extent that it relied upon Section 402(e) of the Law in awarding Claimant benefits.

Finally, we will address Employer’s argument that the Board committed an error of law when it concluded, in the alternative, that Claimant had cause of a necessitous and compelling nature for voluntarily terminating his employment. As noted above, Section 402(b) of the Law provides, in part, that a claimant shall be ineligible for compensation for any week in which the claimant’s unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature. Whether a claimant had cause of a necessitous and compelling nature for leaving work is a question of law subject to this Court’s review. Wasko v. Unemployment Comp. Bd. of Review, 88 Pa.Cmwlth. 16, 488 A.2d 388, 389 (1985). A claimant who voluntarily quits his employment bears the burden of proving that necessitous and compelling reasons motivated that decision. Fitzgerald v. Unemployment Comp. Bd. of Review, 714 A.2d 1126 (Pa.Cmwlth.1998), appeal denied, 568 Pa. 650, 794 A.2d 364 (1999). In order to establish cause of a necessitous and compelling nature, a claimant must establish that (1) circumstances existed that produced real and substantial pressure to terminate employment, (2) like circumstances would compel a reasonable person to act in the same manner, (3) the claimant acted with ordinary common sense, and (4) the claimant made a reasonable effort to preserve her employment. Procito v. Unemployment Comp. Bd. of Review, 945 A.2d 261, 265 (Pa.Cmwlth.2008).

“[I]t is well-settled that an employer’s imposition of a substantial unilateral change in the terms of employment constitutes a necessitous and compelling cause for an employee to terminate her employment.” Brunswick Hotel and Conference Ctr., LLC v. Unemployment Comp. Bd. of Review, 906 A.2d 657, 660 (Pa.Cmwlth.2006). Whether a change is “so substantial as to warrant necessitous cause for terminating employment,” must be determined based on the circumstances of each case. Id., 906 A.2d at 660. “[Substantiality is measured by the impact on the employee, and whether the change involves any real ‘difference’ in employment conditions.” McCarthy v. Unemployment Comp. Bd. of Review, 829 A.2d 1266, 1272 (Pa.Cmwlth.2003). The reasons for the change in employment conditions are irrelevant, as “[i]t is not a defense for the employer to merely establish that it had good reasons for the unilateral change.” Chavez (Token) v. Unemployment Comp. Bd. of Review, 738 A.2d 77, 82 (Pa.Cmwlth.1999), appeal denied, 563 Pa. 704, 761 A.2d 551 (2000). “Whether an employee has a necessitous and compelling reason to voluntarily quit employment is a question of law fully reviewable by this Court.” Brunswick Hotel, 906 A.2d at 660.

Claimant argues that this case is similar to Accu-Weather v. Unemployment Compensation Board of Review, 160 Pa.Cmwlth. 307, 634 A.2d 818, 820 (1993), wherein the employer eliminated a thirty-day notice clause which had been part of the employee’s previous contract, knowing that the employee considered the clause to be crucial term, and presented the proposed change to the employee on a “take-it-or-leave-it” basis. Under those circumstances, this Court in Accur-Weather affirmed the Board’s determination that the employee had “cause of a necessitous and compelling nature” to voluntarily terminate his employment and, therefore, was thus entitled to unemployment compensation benefits.

Here, the Board found that “[subsequent to the nonrenewal, the employer attempted to negotiate a new contract with the claimant that eliminated the automatic renewal provision, eliminated the automatic pay raise, eliminated a $500.00 car allowance, required the claimant to contribute toward medical benefits and revised the severance package.” (Board’s opinion, F.F. no. 5.) Based upon this finding, the Board concluded, in the alternative, that Claimant had cause of a necessitous and compelling nature to quit his employment because Employer was attempting to make unilateral and substantial changes in the terms and conditions of Claimant’s employment. (Board’s opinion, p. 3.) We agree with Claimant that the changes Employer sought to impose on Claimant were even greater than the single change that the employer in Accw-Weather sought to impose. Thus, Claimant established necessitous and compelling reasons for voluntarily terminating his employment.¹²

For the reasons set forth above, we affirm the Board’s order on alternative grounds.

ORDER

AND NOW, this 21st day of March, 2012, the order of the Unemployment Compensation Board of Review is hereby AFFIRMED on alternative grounds.

2 . Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b). Section 402(b) of the Law provides, in pertinent part, that an employee shall be ineligible for compensation for any week "[i]n which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature.”

3 . The employment agreement between Employer and Claimant provided for automatic renewal each year, effective July 9th. (R.R., Item No. 5a, at p. 2.) It also provided, in relevant part, as follows: “In the event Employee is terminated by the Employer, the Employer agrees to give Employee written notice of termination at least thirty (30) days in advance of the termination date.” (Id. at 2.) "For the purpose of determining when severance pay is due, termination shall occur when ... Employer, by a majority of the governing body, votes to terminate the Employee at a duly authorized public meeting." (Id. at 2-3).

4 . Employer’s letter, dated June 8, 2010, provided, in part:

As I believe you are aware, at the regularly scheduled meeting of the Board of Supervisors ... last evening, June 7, 2010, a majority of the members of the Board of Supervisors voted to terminate your Employment Agreement at the end of its current term and prior to its automatic renewal on July 9, 2010. Accordingly, please allow this letter to serve as your thirty (30) days prior written notice of termination consistent with the terms of your Employment Agreement.

(C.R., Item no. 13, Ex. C-l.)

5 . Employer’s counsel’s letter, dated July 7, 2010, provided, as follows:

When we met approximately two (2) weeks ago, I advised you that the Board of Supervisors' offer of a new Employment Agreement centered on the following:

• Elimination of the automatic renewal provision that existed in the expiring Employment Agreement;

• Elimination of the automatic raise provisions that existed in the expiring Employment Agreement;

• Elimination of contract language requiring that the Township Manager be highest paid township employee, as well as elimination of language connecting the Township Manager's salary with the salary of the Township Police Chief;

• Elimination of the $500 Township Manager car allowance;

• Employee contribution to health care benefits;

• Revision of the existing severance package, namely pertaining to health care benefits, as it existed in the expiring Employment Agreement.

(R.R., Item No. 8a, at p. 1.) The letter also summarized Claimant’s counter-offer to the Board of Supervisors’, which Claimant made approximately one (1) week prior to the date of the letter. (Id. at pp. 1-2.)

6 .Claimant also presented the testimony of Robert McMonagle, one of the members of the Board of Supervisors of Middletown Township. Employer presented the testimony of its counsel, Mr. Hunt, and Ann Everk, Employer’s personnel administrative assistant. Their testimony did not contradict Claimant's relevant testimony, as summarized herein.

7 . Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e). Section 402(e) of the Law provides, in part, that a claimant shall be ineligible for compensation for any week in which the claimant’s unemployment is due to "willful misconduct in connection with his work.”

8 . This Court’s standard of review is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether necessary findings of fact are supported by substantial evidence. 2 Pa.C.S. § 704.

9 . Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. §§ 802(a) and 802(a)(1). Sections 402(a) and 402(a)(1) of the Law provide, in pertinent part, as follows:

Ineligibility for compensation An employe shall be ineligible for compensation for any week—

(a) In which his unemployment is due to failure, without good cause, either to apply for suitable work ... or to accept suitable work when offered to him ... by any employer. ...

(a)(1) In which his unemployment is due to failure to accept an offer of suitable full-time work in order to pursue seasonal or part-time employment.

10 . Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(h). Section 402(h) of the Law provides, in part, that an employee is ineligible for compensation for any week "[i]n which he is engaged in self-employment.”

11 . The Board attempted to distinguish the case now before us from this Court’s earlier opinion in Delaney. The Board reasoned that in the case now before us, Employer terminated Claimant's employment when it voted on June 7, 2010, to terminate his employment contract. The Board compared the present circumstances to those in Delaney, where there was no indication that the claimant in Delaney "had an employment contract that was terminated by the employer." (Board’s opinion, p. 2.) The Board focused on the fact that "prior to attempting to negotiate with the claimant, the employer took action and terminated the claimant.” (Id.) The Board, however, failed to appreciate that, although the Board of Supervisors voted on June 7, 2010, to terminate or not renew Claimant’s contract, Claimant’s termination was not effective until July 9, 2010, the date that his employment agreement expired (which was also thirty-one days after the letter giving Claimant the thirty-day notice of the impending termination of his employment, as required by his employment contract). Thus, Claimant remained employed during the time period during which Employer’s counsel attempted to negotiate a new employment contract. Moreover, the analysis set forth in Delaney originated in Hospital Service Association, a case where the claimants were employed by the employer, were notified that their employment would be terminated at a date in the future, and refused to accept offers of continued employment on a different shift, which offers of continued employment were extended during the time period between notification of impending termination and the final day of employment. The Board’s attempt to distinguish Delaney as discussed above, therefore, is unpersuasive.

12 . We reject Employer’s argument that Claimant failed to establish necessitous and compelling reasons for voluntarily terminating his employment when he failed to make a "reasonable” counter-offer to Employer's offer of continued employment. In the case at hand, Employer unilaterally chose to terminate Claimant’s employment. Employer then presented Claimant with an offer of continued employment, which contained unilateral and substantial changes in the terms of employment. Through this argument. Employer appears to suggest that although it did not provide Claimant with an offer of continued employment that Claimant should have been reasonably expected to accept, because the offer of continued employment contained unilateral and substantial changes to the employment relationship, Claimant should be denied benefits if he does not respond with a reasonable counter-offer to Employer’s offer. There simply is no support for such a position.