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HARRISON S. COMSTOCK v. COMMONWEALTH PENNSYLVANIA (12/23/81)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: December 23, 1981.

HARRISON S. COMSTOCK, 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 Harrison S. Comstock, No. B-176537.

COUNSEL

Frank J. Lucchino, Grogan, Graffam, McGinley, Solomon & Lucchino, with him Joseph M. Coyle, for petitioner.

Charles G. Hasson, Associate Counsel, with him Richard L. Cole, Chief Counsel, for respondent.

Judges Mencer, Williams, Jr. and Palladino, sitting as a panel of three. Opinion by Judge Palladino.

Author: Palladino

[ 63 Pa. Commw. Page 380]

Harrison Comstock (claimant) appeals here from a decision and order of the Unemployment Compensation Board of Review (Board) which held that claimant

[ 63 Pa. Commw. Page 381]

    had terminated his employment without cause of a necessitous and compelling nature, and was thus disqualified from receiving benefits by Section 402(b)(1) of the Unemployment Compensation Law (Law), Act of December 5, 1936, P.L. (1937) 2897, Second Ex. Sess., as amended, 43 P.S. ยง 802(b)(1).*fn1

The facts in this case are not in dispute. On March 23, 1979, claimant, because of a lack of work, was laid off from his job as an internal welder for A.C.F. Industries (A.C.F.), a position he held for approximately twelve years. At the time of the layoff, claimant was covered by the terms of a collective bargaining agreement between A.C.F. and the United Steel Workers of America which provided, inter alia, that all laid off employees had the right to "bump" less senior employees in equivalent or lesser job classifications if the laid off employee was qualified to fill the position in question. Although A.C.F. informed claimant on March 27, 1979, that he had to exercise this right, claimant failed to pursue the matter, and accordingly remained unemployed.

Before this Court, the only issue raised by claimant is whether the Board erred as a matter of law by concluding that his failure to exercise his contractual "bumping" privilege amounted to a voluntary termination of employment. Since we believe that the Board committed no such error, we will affirm.

[ 63 Pa. Commw. Page 382]

"The issue of whether one has voluntarily left work is one of law; the resolution of that question is dependent upon the underlying facts as found by the board." Roberts v. Unemployment Compensation Board of Review, 61 Pa. Commonwealth Ct. 21, 24, 432 A.2d 646, 648 (1981).

In deciding whether an employee's termination is "voluntary" or not, we have stated that "'when an employee engages in conduct which necessarily leads to the termination of his employment, the . . . [agency] . . . is clearly justified in characterizing such termination as voluntary.'" Fisher v. Unemployment Compensation Board of Review, 38 Pa. Commonwealth Ct. 518, 522, 393 A.2d 1304, 1306 (1978) (quoting Ernst v. Department of Public Welfare, 37 Pa. Commonwealth Ct. 643, 647, 391 A.2d 1116, 1118 (1978)); see also: Weaver v. Unemployment Compensation Board of Review, 60 Pa. Commonwealth Ct. 136, 430 A.2d 1214 (1981).

In the present case, the Board found, based on substantial evidence in the record, that claimant had an obligation to inquire whether there were any jobs which he could "bump" into, that claimant made no such inquiries, and that "claimant could have continued his employment had he exercised his bumping privileges. . . ." Furthermore, it is clear that claimant was fully aware that he had to take some affirmative action to preserve his employment since it is undisputed that he was informed by A.C.F. on March 27, 1979, that he had to exercise his "bumping" privilege.

These facts clearly show, in our view, that claimant, by failing to take any affirmative action to exercise his "bumping" privilege, clearly engaged in conduct which lead to the termination of his employment, and that he is therefore disqualified from receiving

[ 63 Pa. Commw. Page 383]

    benefits by Section 402(b)(1) of the Law. Fisher; Weaver.

Accordingly, we enter the following

Order

And Now, December 23, 1981, the Decision and Order of the Unemployment Compensation Board of Review, Decision No. B-176537, dated October 10, 1979, is affirmed.

Disposition

Affirmed.


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