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SHIP INN v. COMMONWEALTH PENNSYLVANIA (04/02/80)

decided: April 2, 1980.

SHIP INN, INC., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeal from the Order of the Unemployment Compensation Board of Appeal in case of In Re: Claim of Eva A. Pilsey, No. B-166975.

COUNSEL

Lynn S. Palenscar, of MacElree, Harvey, Gallagher & Kean, Ltd., for appellant.

John T. Kupchinsky, Assistant Attorney General, with him Richard Wagner, Chief Counsel, and Edward G. Biester, Jr., Attorney General, for respondent.

Judges Blatt, MacPhail and Williams, Jr., sitting as a panel of three. Opinion by Judge Williams, Jr. President Judge Bowman did not participate in the decision in this case.

Author: Williams

[ 50 Pa. Commw. Page 293]

This is an appeal by employer Ship Inn, Inc. from a decision by the Unemployment Compensation Board of Review granting unemployment benefits to claimant Mrs. Eva Pilsey. The Board found that the claimant had "necessitous and compelling" cause to terminate her employment, and therefore was not ineligible for benefits under Section 402(b)(1) of the Unemployment Compensation Law. Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. ยง 802(b)(1). The Board's decision reversed a contrary determination by the Bureau of Employment Security and the Referee.

The claimant, Mrs. Pilsey, had been employed by the Ship Inn in Exton, Pennsylvania, for about 15 1/2 years prior to her termination in May 1978. For some time prior to her termination, her employment combined

[ 50 Pa. Commw. Page 294]

    the tasks of waitress, head waitress and hostess. She worked as a waitress three nights a week, for which she was paid $1.20 per hour. However, the nights the claimant worked as a waitress she also functioned as head waitress, which entitled her to an extra $15.00 a week for that role. She also worked as hostess one night a week, for which she earned another $30.00. Her weekly pay averaged $67.80.

In December 1977, the ownership of the Ship Inn had changed. On May 17, 1978 the new owner informed the claimant that she would no longer receive the extra $15.00 a week for her duties as head waitress. She was also told that if she did not like that arrangement her termination would be accepted. There was no reason given for this action by the employer, nor is there any evidence of dissatisfaction with the claimant's performance in her job. As a result of the reduction in her pay, the claimant voluntarily terminated her employment at the Ship Inn, as of May 20, 1978.

The Unemployment Compensation Board of Review found, as the claimant testified, that the employer unilaterally and without stated reason reduced her weekly salary of $67.80 by $15.00 a week. The Board found that what the employer discontinued was the $15.00 she had been receiving for her role as head waitress and that the employer had changed her rate of pay. Based on these findings, the Board concluded that the employer had so substantially changed the claimant's "contract of hire" as to create a "necessitous and compelling" cause for the claimant to voluntarily terminate her employment at the Ship Inn. The appellant-employer asserts that the Board committed an error of law in that determination.

It is not clear from the Board's written decision whether the $15.00 head waitress pay was eliminated because the job itself was eliminated, or because the employer was ...


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