No. 742 APRIL TERM, 1977, No. 743 APRIL TERM, 1977, Appeals from the Judgments entered May 9, 1977, on Order of the Court of Common Pleas of Allegheny County, Civil Division at Nos. GD 76-01981 and GD 76-07735 affirming Decree Nisi and Non Jury Verdict.
Joseph M. Zoffer, Pittsburgh, for appellants.
Paul G. Kachulis, Pittsburgh, for appellees.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Price and Van der Voort, JJ., dissent. Watkins, former President Judge, did not participate in the consideration or decision of this case.
[ 257 Pa. Super. Page 452]
The question presented is whether appellants must pay 100% of the fee charged by appellee for finding employment for appellants, or only 10% of the amount appellants earned. The lower court held, 100%. Whether this was correct depends upon the interpretation to be given to the Employment Agency Law, Act of July 31, 1941, P. L. 616, § 20, added 1972, Oct. 16, P. L. 917, No. 220, § 6, 43 P. S. § 535, et seq., and the Regulations of the Pennsylvania Department of Labor and Industry, 34 Pa. Code § 9.11 et seq.
The pertinent section of the Act provides:
For a position known to be of a duration of ten (10) weeks or less or for a position that the applicant loses within a period of ten (10) weeks after the starting date, the fee will be a maximum of ten (10%) percent of the amount earned, except if the applicant fails to report as agreed or resigns to accept employment elsewhere, then the agency shall be entitled to its full fee.
43 P. S. § 574(m) (emphasis added).
The Regulations provide that an applicant "loses" a position when
[a]n applicant has voluntarily or involuntarily terminated employment within ten weeks from the starting date. 34 Pa. Code § 9.11(a) (emphasis added).
Appellants voluntarily left the employment found for them by appellee, and did so within ten weeks; they argue that therefore appellee is entitled to a maximum fee of 10% of the amount they earned. Appellants acknowledge that in certain situations appellee would be entitled to retain 100% of its fee, but they argue that there are only two such situations: when an applicant "fails to report as agreed" (which appellants did not do); and when an applicant "resigns to accept employment elsewhere" (which appellants did not do either; they resigned, but not to accept employment elsewhere). The lower court rejected appellants' argument, holding that "loses" means to be "deprived of something, in an involuntary manner", Slip Opinion at 18; thus, the court concluded:
[ 257 Pa. Super. Page 453]
Voluntarily leaving a position, absent reasonably compelling cause, is not "a position that the applicant loses." The representative [appellants] in both actions and those similarly situated, voluntarily left the positions in which they were placed, without reasonably compelling cause, within ten weeks of placement and having done so did not lose their positions. Accordingly, the [appellees] in both actions are not required to refund any portion of the fee to the applicant or refrain ...