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UNEMPLOYMENT COMPENSATION BOARD REVIEW COMMONWEALTH PENNSYLVANIA v. ROBERT FABRIC (04/02/76)

decided: April 2, 1976.

UNEMPLOYMENT COMPENSATION BOARD OF REVIEW OF THE COMMONWEALTH OF PENNSYLVANIA
v.
ROBERT FABRIC, APPELLANT



Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Robert Fabric, No. B-126081.

COUNSEL

Raymond M. Larizza, for appellant.

Charles G. Hasson, Assistant Attorney General, with him Sydney Reuben, Assistant Attorney General, and Robert P. Kane, Attorney General, for appellee.

Judges Kramer, Rogers and Blatt, sitting as a panel of three. Opinion by Judge Kramer.

Author: Kramer

[ 24 Pa. Commw. Page 239]

This is an appeal by Robert Fabric from an order of the Unemployment Compensation Board of Review, dated June 6, 1975, which reversed a referee's determination and denied benefits. We view the only real issue as whether the Board erred in denying all benefits to Fabric when he voluntarily left a job which paid less than his partial benefit credit. We hold that the Board erred as a matter of law and reverse.

Fabric was employed by the United States Postal Service until February 1, 1974, at which time he applied for and began receiving unemployment benefits. On his own initiative, Fabric responded to an advertisement for part-time employment as a cashier in the William Penn Pipe Shop. Fabric was informed by William Penn that he would be hired for eight hours of work per week at $2.25 per hour, the total wages being $18.00 per week. Fabric's partial benefit credit under Section 404(d) of the Pennsylvania Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 804(d), was $20.00, which means that Fabric was free to earn up to $20.00 per week without suffering a reduction in his weekly benefits.

After reporting to an "instructor," whose function was to orient new employes of William Penn, Fabric was given the first information that suggested the job in the pipe shop might involve some personal risk. During his orientation session Fabric was told that the shop had experienced difficulty with customers and cashiers being harassed. He was also informed that a blackjack was provided by management. Fabric had been told by a management representative that he might be assigned to a location other than the one at which his orientation was taking place, and Fabric asked the instructor if conditions would be safer at the other shop. The instructor responded that, to the contrary, conditions would probably be worse because the other location remained open all night and

[ 24 Pa. Commw. Page 240]

    contained pinball machines (which apparently attracted unsavory characters).

Fabric worked one shift from midnight to 8:00 A.M. and quit his job with William Penn. His UC-990 form, which was admitted into evidence, contained the following handwritten statement by Fabric: "I left [the cashier's job] because the wages wasn't worth the risk of possible injury to myself. The risk was there to be sure." [sic]

The Board denied benefits on the basis of Section 402(b)(1), 43 P.S. § 802(b)(1), concluding that Fabric had left the cashier's job voluntarily and without cause of a necessitous and compelling nature. Fabric contests this conclusion,*fn1 but he argues that even if sufficient cause for his separation is found to be lacking, the Board should only have denied benefits to the extent which his earnings at the pipe shop would have warranted a reduction. The effect of this argument is that no benefits should be denied, since Fabric was only guaranteed $18.00 per week by William Penn and his partial benefit credit was $20.00, i.e., he was permitted to earn up to $20.00 per week without a reduction in benefits.

The Board maintains that the "factual matrix" at the time of separation controls the question of eligibility, Gianfelice Unemployment Compensation Case, 396 Pa. 545, 153 A.2d 906 (1959), and that if claimants are able to quit part-time jobs without ...


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