Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Thomas J. Smith, No. B-163299.
Martin D. Cohn, with him Lawrence B. Cohn, of Laputka, Bayless, Ecker & Cohn, P.C., for petitioner.
David R. Confer, Assistant Attorney General, with him Richard Wagner, Chief Counsel, and Edward G. Biester, Jr., Attorney General, for respondents.
Judges Crumlish, Jr., Mencer and Craig, sitting as a panel of three. Opinion by Judge Craig. Judge DiSalle did not participate in the decision of this case.
[ 49 Pa. Commw. Page 264]
Kama Corporation, as employer, appeals from the affirmance by the Unemployment Compensation Board of Review (board) of the referee's award of benefits to Thomas J. Smith, claimant.
Claimant, a non-union laborer, terminated his employment with petitioner on November 27, 1977. On that date, there was pending a labor dispute which resulted in a work stoppage beginning December 3.
The bureau initially found claimant eligible under Section 402(d) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess. P.L. (1937) 2897, as amended, 43 P.S. § 802(d), on the ground that the work stoppage was a lockout. On appeal, the referee modified the award to base it on Section 402(b)(1) of the law, 43 P.S. § 802(b)(1), concluding that, although claimant terminated before the stoppage began, the termination was with cause of a necessitous and compelling nature, in that claimant had been threatened with bodily harm and had sustained property damage during the pendency of the labor dispute. The board affirmed, and this appeal followed.
Claimant testified that, on November 26, 1977, he was approached in a tavern by two union members who told him his knees would be broken with a baseball bat if he returned to work; further, he testified that his automobile was vandalized the following day.
On these facts, a conclusion of cause of a necessitous and compelling nature could be supported.
[ 49 Pa. Commw. Page 265]
Claimant's conduct could be seen to be reasonable and prudent under the circumstances, as in Hoy v. Unemployment Compensation Board of Review, 38 Pa. Commonwealth Ct. 126, 391 A.2d 1144 (1978). There claimants were clerks in a grocery store who quit due to fear for their safety, after being informed of the suspected proximity of a murder-robbery suspect, wanted in connection with two killings at similar stores. The gravity of the threat here was not so critical but was nonetheless quite substantial; being the object of the threat and having sustained property damage, Smith was obviously a potential victim, and the likelihood of its effectuation here seemed at least as great as in Hoy, supra.
As our Supreme Court reiterated in Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 359-60, 378 A.2d 829, 833 (1977), "'. . . [t]he pressure of necessity . . . or other overpowering circumstances and [claimant's] capitulation to them transform what ...