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EUGENE G. GAVIN v. UNEMPLOYMENT COMPENSATION BOARD REVIEW COMMONWEALTH PENNSYLVANIA (04/25/77)

decided: April 25, 1977.

EUGENE G. GAVIN, PETITIONER
v.
UNEMPLOYMENT COMPENSATION BOARD OF REVIEW OF THE COMMONWEALTH OF PENNSYLVANIA, RESPONDENT



Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Eugene G. Gavin, B-131864.

COUNSEL

Eugene G. Gavin, appellant, for himself.

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

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

Author: Kramer

[ 29 Pa. Commw. Page 635]

This is an appeal by Eugene G. Gavin (Appellant) from a decision of the Unemployment Compensation Board of Review (Board) which held him ineligible for benefits under several sections of the Unemployment Compensation Law*fn1 (Act). The Board concluded (1) that Appellant was not "unemployed" within the meaning of Sections 401*fn2 and 4(u)*fn3 of the Act; and (2) that, in any event, he had voluntarily left his employment without cause of a necessitous and compelling nature and was thus disqualified by Section 402(b)(1).*fn4 We will affirm.

Appellant was employed as a superintendent of the claims department of the United States Fidelity and Guaranty Company in Scranton, Pennsylvania. At the time of his separation he was paid a $300 per week salary. His last day of work was October 3, 1975.

In 1971, the City Council of the City of Scranton passed a ten-dollar annual Per Capita Tax. In 1972, the Council passed an ordinance establishing a "Household Service Fee." Both ordinances were passed pursuant to authority granted in The Local Tax Enabling Act.*fn5 Appellant, along with many other Scranton residents, refused to pay and resisted all efforts by the City to collect these taxes. Finally,

[ 29 Pa. Commw. Page 636]

    the City retained the services of a private collection agency*fn6 which served notice upon the employers of delinquent taxpayers that such delinquent taxes were to be deducted, under penalty for failure to do so, from the employes' wages and paid over to the City pursuant to Section 19 of The Local Tax Enabling Act.*fn7 When informed by his employer of this development, Appellant threatened to leave work if any deduction was made. The employer consulted in-house counsel, as well as outside authorities, and was advised that the collection procedure was legal. Consequently, a deduction of $38, the entire amount of Appellant's delinquent Per Capita Tax liability, was made from Appellant's weekly pay on August 22, 1975. On September 10, 1975, Appellant submitted his written resignation, effective as of October 4, 1975. However, a "severance pay" arrangement was made by which Appellant continued to receive his salary until December 26, 1975 and remained within the coverage of the company's group life and health insurance programs until January of 1976.

In his appeal, Gavin asserts that the Board erred in (1) concluding that he acted without cause of a compelling and necessitous nature when he quit his employment, and (2) concluding that his "severance pay" was "remuneration" within the meaning of Section 4(u)(I)(ii) of the Act. We do not reach the second issue, for we conclude that the Board correctly determined that Appellant voluntarily left his employment without cause of a necessitous and compelling nature and was thus ineligible for benefits under Section 402(b)(1).

Appellant has quite frankly admitted, both before the referee and in his brief ...


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