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decided: May 22, 1980.


Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Myron C. Gackenbach, No. B-169076.


F. Paul Laubner, for petitioner.

Charles Hasson, Assistant Attorney General, with him, Richard Wagner, Chief Counsel and Edward G. Biester, Jr., Attorney General, for respondent.

Mark C. Stephenson, Assistant Counsel, with him, John Alford, Deputy Chief Counsel and George M. Kashi, Chief Counsel, for Public Utility Commission.

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

Author: Crumlish

[ 51 Pa. Commw. Page 476]

The Unemployment Compensation Board of Review (Board) affirmed the referee's denial of unemployment compensation benefits to Myron C. Gackenbach.*fn1 Gackenbach appeals. We affirm.

The issue is whether Gackenbach's termination of employment was a "voluntary quit."*fn2

Gackenbach was last employed as a Tax Attorney II by the Commonwealth of Pennsylvania, Public Utility Commission. On July 18, 1978, he submitted a letter of resignation indicating a desire to terminate his employment and to seek a position more in keeping with his "training and experience and to correct [his] present distant commutation."

In reality, Gackenbach's resignation was prompted by receipt of an "unsatisfactory" job performance rating and his desire to keep such rating from becoming part of his personal file.

[ 51 Pa. Commw. Page 477]

Gackenbach argues on appeal that a rating of "unsatisfactory" in job performance is synonymous with discharge, making his termination involuntary and the denial of benefits improper. In addition, he contends that his resignation was necessary to preserve any future opportunity for employment with the Commonwealth.

While in a given factual pattern, an "unsatisfactory" job performance rating may be equivalent to discharge, see Volk v. Unemployment Compensation Board of Review, 29 Pa. Commonwealth Ct. 529, 371 A.2d 1045 (1977), the recorded facts and findings of the referee belie such a finding here.

The referee found, and the record supports the referee's finding, that Gackenbach was aware that an interim evaluation report was being prepared; that the purpose of that report was to alert him of his deficiencies and to salvage him as a good employee; that had he not resigned work, he would have continued to be available at least up to the end of his probationary period*fn3 (three to four months) at which time he would have been terminated if his work had not improved; and finally, that the idea of resignation was initiated by Gackenbach and not his employer as an alternative to having the poor evaluation report become part of his work record.

When there is no imminent threat of termination from employment but only a mere possibility of its future occurrence, resignation because of a desire to keep an "unsatisfactory" evaluation from becoming part of the individual personnel file is not a necessitous and compelling reason for termination justifying the receipt of benefits.

Accordingly, we

[ 51 Pa. Commw. Page 478]


And Now, this 22nd day of May, 1980, the decision of the Unemployment Compensation Board of Review at No. E-169076, dated February 22, 1979, affirming the referee's denial of benefits to Myron C. Gackenbach, is affirmed.



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