Appeal by employer, from decision of Unemployment Compensation Board of Review, No. B-95263-B, in re claim of Richard T. Rone.
David N. Rosen, for appellant.
Sydney Reuben, Assistant Attorney General, with him William C. Sennett, Attorney General, for Unemployment Compensation Board of Review, appellee.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Wright, J. Dissenting Opinion by Hoffman, J.
[ 211 Pa. Super. Page 426]
Richard T. Rone was last employed as a truck driver, mechanic's helper, and utility man by Hambridge Steel Erectors, Inc., 6811 Greenway Avenue in the City of Philadelphia. His final day of work was April 7, 1966, on which date he terminated his employment. The Bureau of Employment Security determined that Rone had voluntarily left work without cause of a necessitous and compelling nature, wherefore he was disqualified under Section 402(b)(1) of
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the Unemployment Compensation Law.*fn1 The Referee reversed the Bureau's determination and allowed benefits. The Unemployment Compensation Board of Review affirmed the decision of the Referee. The employer has appealed.
Rone commenced work on May 18, 1964, at a straight salary of $80.00 per week. The reason he assigned for terminating his employment was as follows: "I quit this job because they did not pay me for overtime". According to G. L. Hambridge: "It was understood that there would be no overtime . . . When we were busy he did work long hours, but by the same token when things slowed up he left earlier". Rone himself made the following statement: "I figured there would be no overtime if you were on salary". When asked whether there was ever any understanding that he would be paid overtime, Rone replied: "A. No, they never got around to it . . . Q. What did you do on April 7th. A. I quit. I could not go along any longer with it". The record discloses that, due to Rone's complaint about his working hours, he was given two raises, first to $100.00 per week and later to $108.00 per week, "as before with the no overtime understanding". The employer's position is summarized in the statement of its superintendent, William Peck, that "when you are salaried you do not get overtime. When there is work you work; when there is not work you have it easier".
The Board of Review concluded that Rone had met the burden of showing a necessitous and compelling reason for leaving his employment because the employer "failed to establish an equitable plan for overtime work". We are not in accord with this conclusion. To permit it to stand would mean that any salaried employe could request higher pay and, if his
[ 211 Pa. Super. Page 428]
request was denied, terminate his employment and receive unemployment compensation, a result certainly not intended by the legislature.
There can be no quarrel with the argument of able counsel for the appellee that the Board's findings of fact, if supported by evidence, are conclusive on appeal. Cf. Progress Mfg. Co. v. U. C. Bd. of Rev., 406 Pa. 163, 176 A.2d 632. However, the legal conclusion drawn by the Board from its findings is subject to our review: Quinn U. C. Case, 201 Pa. Superior Ct. 152, 191 A.2d 714. Whether a claimant's unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature is a question of law: Martinez U. C. Case, 186 Pa. Superior Ct. 50, 140 A.2d 351. It has been held in a long line of decisions by this court that a claimant who voluntarily quits work because of dissatisfaction with his rate of pay is ineligible to receive benefits.*fn2 As stated in Disario U. C. Case, 193 Pa. Superior Ct. 517, 165 A.2d 111: "While ...