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EMGEE ENGINEERING COMPANY v. UNEMPLOYMENT COMPENSATION BOARD REVIEW COMMONWEALTH PENNSYLVANIA (3 CASES) (05/24/77)

decided: May 24, 1977.

EMGEE ENGINEERING COMPANY
v.
UNEMPLOYMENT COMPENSATION BOARD OF REVIEW OF THE COMMONWEALTH OF PENNSYLVANIA (3 CASES)



Appeals from the Orders of the Unemployment Compensation Board of Review in cases of In Re: Claim of Russell E. Gratton, B-131894; In Re: Claim of William M. Alexander, III, No. B-131895; and In Re: Claim of Richard G. Staudacher, No. B-134512.

COUNSEL

Leonard A. Costa, Jr., with him Robert Rade Stone, for appellant.

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

[ 30 Pa. Commw. Page 291]

This case involves three appeals by the Emgee Engineering Company (Emgee) from orders of the Unemployment Compensation Board of Review (Board) each of which affirmed a referee's decision and allowed benefits to Russell E. Gratton, William M. Alexander, III and Richard D. Staudacher, respectively. In each case the compensation authorities concluded that the failure of Emgee, on several occasions, to make a timely payment of wages according to the agreed-upon schedule for payment constituted "cause of a necessitous and compelling nature" for leaving one's employment within the meaning of Section 402(b)(1)

[ 30 Pa. Commw. Page 292]

    of the Unemployment Compensation Law*fn1 (Act).

In each of the three cases, the compensation authorities found that the claimant involved had not received his pay on the agreed-upon payday on several occasions. They also found that the claimants terminated their employment after the three had requested their employer to guarantee the timely payment of wages and the employer had refused to make such guarantee. We have reviewed the record and conclude that these findings are supported by substantial evidence. We are, therefore, bound by them. Unemployment Compensation Board of Review v. Moran, 21 Pa. Commonwealth Ct. 387, 346 A.2d 591 (1975).

Emgee's first argument is that the claimants are barred from receiving unemployment compensation because they failed to avail themselves of the legal remedies provided by the Wage Payment and Collection Law*fn2 (W.P.C.L.). See Horning Unemployment Compensation Case, 177 Pa. Superior Ct. 618, 620, 112 A.2d 405, 406 (1955). Assuming that the principle stated in Horning is applicable to this type of case,*fn3 we still must conclude that it does not preclude the granting of benefits in this particular case.

[ 30 Pa. Commw. Page 293]

Section 11(a) of the W.P.C.L.*fn4 provides employes with a right of action for "unpaid wages and liquidated damages." Under Section 10 of the W.P.C.L.,*fn5 liquidated damages are only available if wages have remained unpaid for over thirty days. Finally, under Section 9(a) of the W.P.C.L.,*fn6 the employer is only subject to an action for penalties by the Secretary of Labor if he fails to pay the wages within ten days after notice from the Secretary of a claim. Thus, where the employer pays the wages within a short time after they are due and payable, as Emgee did by never being more than five ...


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