Groffi v. Commonwealth, Unemployment Compensation Board of Review

Opinion by

Judge Blatt,

The claimant¹ appeals here because the Board² denied him benefits on the ground that he voluntarily terminated his employment without cause of necessitous and compelling reason.³

In December of 1978, the claimant, a college professor, was advised by tbe dean of tbe college⁴ tbat, due to tbe continuing nature of tbe claimant’s unsatisfactory performance,⁵ tbe dean was recommending to tbe president of tbe college tbat tbe claimant’s services be terminated at tbe end of tbe academic year.⁶ Later tbe same day tbe claimant, wbo argues tbat be believed tbe dean’s recommendation to be tantamount to a dismisal, submitted a letter of resignation. On or about January 11,1979 be went on sick leave for tbe remainder of bis contract year.

Whether a termination of services is a voluntary quit or a discharge is a question of law to be determined by this Court based upon the findings of fact made by the Board, Zibelman v. Unemployment Compensation Board of Review, 50 Pa. Commonwealth Ct. 108, 411 A.2d 1313 (1980), and in voluntary quit cases under Section 402(b)(1) of tbe Unemployment Compensation Law, tbe burden is upon tbe employee to prove that be bad a necessitous and compelling reason for leaving bis employment. Rinehart v. Unemployment Compensation Board of Review, 37 Pa. Commonwealth Ct. 15, 389 A.2d 243 (1978); Borman v. Unemployment Compensation Board of Review, 12 Pa. Commonwealth Ct. 241, 316 A.2d 679 (1974).

Here the claimant could have continued in his status as a professor and could have awaited the action of the board of trustees, with whom the final decision rested. His resignation, therefore, was premature because there had not been any definitive determination of his status by those with authority to hire and fire.

There was clearly substantial evidence to support the finding of the Board, and we must affirm.

Order

And Now, this 10th day of April, 1981, the order of the Unemployment Compensation Board of Review in the above-captioned matter is affirmed.

Judge Wilkinson, Jr. concurs in the result only.

This decision was reached prior to the expiration of the term of office of Judge Wilkinson, Jr.

1 Joseph H. Goffi.

2 Unemployment Compensation Board of Review.

3 Section 402(b) (1) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(b)(l), which provides in pertinent part:

Axl employe shaU be ineligible for compensation for any week—

(b) (1) In which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature, irrespective of whether or not such work is in ‘employment’ as defined in this act....

4 Reading Area Community College.

5 The unsatisfactory performance involved lateness, student complaints and failure to respond to previous evaluations by former department heads.

6 The record indicates that the president’s recommendation for dismissal was in turn forwarded to and adopted by the board of trustees at its December meeting.