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JOSEPH H. GOFFI v. COMMONWEALTH PENNSYLVANIA (04/10/81)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: April 10, 1981.

JOSEPH H. GOFFI, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT

Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Joseph H. Goffi No. B-181276.

COUNSEL

Leon Ehrlich, for petitioner.

Charles G. Hasson, Assistant Attorney General, with him Richard Wagner, Chief Counsel, and LeRoy S. Zimmerman, Attorney General, for respondent.

Judges Wilkinson, Jr., Blatt and Williams, Jr., sitting as a panel of three. Opinion by Judge Blatt. Judge Wilkinson, Jr. concurs in the result only. This decision was reached prior to the expiration of the term of office of Judge Wilkinson, Jr.

Author: Blatt

[ 58 Pa. Commw. Page 423]

The claimant*fn1 appeals here because the Board*fn2 denied him benefits on the ground that he voluntarily terminated his employment without cause of necessitous and compelling reason.*fn3

[ 58 Pa. Commw. Page 424]

In December of 1978, the claimant, a college professor, was advised by the dean of the college*fn4 that, due to the continuing nature of the claimant's unsatisfactory performance,*fn5 the dean was recommending to the president of the college that the claimant's services be terminated at the end of the academic year.*fn6 Later the same day the claimant, who argues that he believed the dean's recommendation to be tantamount to a dismissal, submitted a letter of resignation. On or about January 11, 1979 he went on sick leave for the remainder of his contract year.

Whether a termination of services is a voluntary quit or a discharge is a question of law to be determined by this Court based upon the findings of fact made by the Board, Zibelman v. Unemployment Compensation Board of Review, 50 Pa. Commonwealth Ct. 108, 411 A.2d 1313 (1980), and in voluntary quit cases under Section 402(b)(1) of the Unemployment Compensation Law, the burden is upon the employee to prove that he had a necessitous and compelling reason for leaving his employment. Rinehart v. Unemployment Compensation Board of Review, 37 Pa. Commonwealth Ct. 15, 389 A.2d 243 (1978); Borman v. Unemployment Compensation Board of Review, 12 Pa. Commonwealth Ct. 241, 316 A.2d 679 (1974).

[ 58 Pa. Commw. Page 425]

Here the claimant could have continued in his status as a professor and could have awaited the action of the board of trustees, with whom the final decision rested. His resignation, therefore, was premature because there had not been any definitive determination of his status by those with authority to hire and fire.

There was clearly substantial evidence to support the finding of the Board, and we must affirm.

Order

And Now, this 10th day of April, 1981, the order of the Unemployment Compensation Board of Review in the above-captioned matter is affirmed.

Judge Wilkinson, Jr. concurs in the result only.

This decision was reached prior to the expiration of the term of office of Judge Wilkinson, Jr.

Disposition

Affirmed.


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