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JOHN J. COWLS v. COMMONWEALTH PENNSYLVANIA (03/31/81)

decided: March 31, 1981.

JOHN J. COWLS, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeal from the Order of the Unemployment Compensation Board of Review in the case of In Re: Claim of John J. Cowls, No. B-173187.

COUNSEL

John J. Cowls, petitioner, for himself.

Charles G. Hasson, Assistant Attorney General, with him Richard Wagner, Chief Counsel, and Harvey Bartle, III, Acting Attorney General, for respondent.

Judges Craig, Williams, Jr. and Palladino, sitting as a panel of three. Opinion by Judge Williams, Jr. This decision was reached prior to the expiration of the term of office of Judge Wilkinson, Jr.

Author: Williams

[ 58 Pa. Commw. Page 151]

John J. Cowls, a claimant for unemployment compensation, appeals from an order of the Unemployment Compensation Board of Review denying him benefits. The Board affirmed a referee's decision that the claimant had voluntarily quit his employment without cause of a "necessitous and compelling nature," and was thus ineligible for benefits by force of 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. § 802(b)(1).

Until December 15, 1978, Cowls was employed as a driver-salesman for the Kline Linen and Union Service, being paid $6.10 per hour plus overtime. On December 6, 1978, the employer announced a rule that all driver-salesmen had to complete their assigned

[ 58 Pa. Commw. Page 152]

    routes within 8 hours a day and that no overtime would be paid. The claimant protested this directive, stating that he could not complete his route by working 8 hours a day or 40 hours a week but needed between 46 and 48 hours a week to do so. The claimant took the position that without overtime pay he would have to work more than the other salesmen, that he would not be treated equally.

According to the employer's evidence before the referee, the employer undertook to discuss the matter with the claimant and to resolve the dispute just before the claimant quit. The employer's representative testified that on December 15, 1978, he told the claimant that within a few weeks all routes would be adjusted so that each route could be completed within a 40-hour work week. The claimant was told that in the interim he could take as much time as he needed for his assignment. This employer witness also testified that the promise of adjustment did not satisfy the claimant and that the claimant demanded a written authorization to use more than 40 hours a week to complete his route. Upon being told that no such written authorization would be given, the claimant quit his job.

A claimant becoming unemployed by voluntarily quitting his job assumes the burden of showing that such termination was for cause of a "necessitous and compelling nature." Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 378 A.2d 829 (1977). The Board is the ultimate fact finder and is empowered to resolve conflicts in the evidence and to determine the credibility of witnesses. E.g., Crilly v. Unemployment Compensation Board of Review, 40 Pa. Commonwealth Ct. 221, 397 A.2d 40 (1979). Acting within its province the Board accepted the testimony of the employer's representative that the claimant was told routes would be adjusted in the oncoming weeks

[ 58 Pa. Commw. Page 153]

    and was told that in the interim he could take as much time as he required to finish his route. The Board also accepted the testimony of the employer's representative that the claimant also demanded a written ...


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