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JAMES NAYLON v. COMMONWEALTH PENNSYLVANIA (07/05/84)

decided: July 5, 1984.

JAMES NAYLON, 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 James Naylon, No. B-219195.

COUNSEL

Michael L. Fitzpatrick, with him, Peter M. Suwak, Peter M. Suwak Law Offices, for petitioner.

Michael D. Alsher, Associate Counsel, with him, Richard L. Cole, Jr., Chief Counsel, for respondent.

Judges Rogers, MacPhail and Barbieri, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 83 Pa. Commw. Page 503]

James Naylon (Claimant) has appealed from an order of the Unemployment Compensation Board of Review (Board) which denied his application for unemployment compensation benefits under Section 402(b) of the Unemployment Compensation Law.*fn1

Claimant had been employed as a salesman on commission at Howley Tire Company for approximately thirty years when he was unilaterally transferred by

[ 83 Pa. Commw. Page 504]

    his employer to work at Discount Tire Center, Inc.*fn2 The transfer, which occurred in December, 1982, also resulted in a reduction of Claimant's commission from 10 percent to 5 percent. Claimant worked at Discount Tire Center for approximately nine weeks, until February 17, 1983, when he voluntarily terminated his employment due to dissatisfaction with his earnings.

Claimant subsequently applied for benefits, which were denied by the Office of Employment Security (OES). After a hearing, however, the referee reversed the OES and granted benefits based on his conclusion that the reduction in Claimant's wages rendered his employment unsuitable. On appeal, the Board again reversed, concluding that Claimant had accepted the terms and conditions of the transfer and could not rely on his later dissatisfaction with his pay.

The Claimant, of course, bears the burden of proving that he had a necessitous and compelling reason for terminating his employment. DeNofa v. Unemployment Compensation Board of Review, 51 Pa. Commonwealth Ct. 97, 413 A.2d 786 (1980). Where, as here, the party with the burden of proof has not prevailed before the Board, our scope of review is to determine whether the findings of fact can be sustained without capriciously disregarding competent evidence and whether the findings are consistent with each other and with the conclusions of law. Spinelli v. Unemployment Compensation Board of Review, 63 Pa. Commonwealth Ct. 358, 437 A.2d 1320 (1981).

In general, once an employee has accepted new terms of employment, he has conceded their suitability and may not later claim that dissatisfaction with those terms ...


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