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VENNIE WILLIS v. COMMONWEALTH PENNSYLVANIA (12/05/85)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: December 5, 1985.

VENNIE WILLIS, 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 Vennie Willis, No. B-229690.

COUNSEL

Richard E. Gordon, of counsel: June F. Swanson, for petitioner.

Charles G. Hasson, Acting Deputy Chief Counsel, with him, James K. Bradley, Associate Counsel, for respondent.

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

Author: Macphail

[ 93 Pa. Commw. Page 309]

Vennie Willis (Claimant) appeals from an order of the Unemployment Compensation Board of Review

[ 93 Pa. Commw. Page 310]

(Board) which affirmed the referee's denial of benefits to Claimant pursuant to Section 402(b) of the Unemployment Compensation Law (Law).*fn1 We affirm.

In affirming, the Board adopted the following facts found by the referee. Claimant was employed as a licensed practical nurse by Forbes Health System (Employer). On April 12, 1983, Employer terminated Claimant's services because of medication errors. Claimant, thereupon, filed discrimination charges with the Human Relations Commission (Commission). On May 10, 1983, Claimant and Employer signed an agreement by which Claimant would return to work as a nurse's aide,*fn2 at the same pay rate as a licensed practical nurse, and with back pay. As a condition precedent to this settlement, it was orally agreed that Claimant would retire from her position on September 30, 1983, which was the earliest date the Claimant could receive her pension. Claimant returned to work and, subsequently, withdrew her complaint against Employer which she had filed with the Commission. Claimant remained employed as a nurse's aide until September 30, 1983. The Board concluded that Claimant voluntarily retired as of that date.

Claimant contends in this appeal that she was discharged and did not voluntarily terminate her employment, or, in the alternative, if she did voluntarily

[ 93 Pa. Commw. Page 311]

    quit, that there were compelling and necessitous reasons to justify termination.*fn3

Whether Claimant voluntarily terminated her employment or was discharged is a question of law subject to our review. Kligge v. Unemployment Compensation Board of Review, 89 Pa. Commonwealth Ct. 30, 491 A.2d 325 (1985). The burden of proving that the termination was involuntary rests upon the Claimant.*fn4

[ 93 Pa. Commw. Page 312]

Claimant argues that her termination was not voluntary, because had she not quit the employer would have discharged her. We cannot agree. Claimant's quit was not made owing to the fact of a certain discharge, as was the case in Volk v. Unemployment Compensation Board of Review, 29 Pa. Commonwealth Ct. 529, 371 A.2d 1045 (1977); nor was it in response to a direct ultimatum by her employer, as was the case in Thomas v. Unemployment Compensation Board of Review, 14 Pa. Commonwealth Ct. 398, 322 A.2d 423 (1974) and Torsky v. Unemployment Page 312} Compensation Board of Review, 81 Pa. Commonwealth Ct. 642, 474 A.2d 1207 (1984). Here, Claimant made no effort to continue her employment beyond September 30, 1983, notwithstanding the terms of the agreement with her Employer. In order to be eligible for unemployment compensation benefits, Claimant must establish that she made a reasonable effort to preserve her employment and that there was no choice but to leave. Kieley v. Unemployment Compensation Board of Review, 80 Pa. Commonwealth Ct. 618, 471 A.2d 1345 (1984). This she has failed to do. We agree with the Board's conclusion that the separation was voluntary.

We next must decide whether Claimant met her burden of proving she had cause of necessitous and compelling nature for leaving her employment. Bacon v. Unemployment Compensation Board of Review, 89 Pa. Commonwealth Ct. 35, 491 A.2d 944 (1985). To meet her burden, Claimant must demonstrate circumstances "which produce pressure to terminate that . . . [are] . . . both real and substantial, and which would compel a reasonable person under the circumstances to act in the same manner." Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 359, 378 A.2d 829, 832-33 (1977).

Claimant argues that a case of necessitous and compelling nature arises from the fact that had she attempted to stay on past September 30, 1983, she would have been in breach of the terms of the agreement, and would have been acting in bad faith. Claimant misapprehends the issue. Claimant voluntarily agreed to become re-employed so that she could qualify for her pension. Her separation, therefore, was the result of that voluntary agreement and was a voluntary retirement. A voluntary retirement cannot constitute a necessitous and compelling reason for voluntarily

[ 93 Pa. Commw. Page 313]

    terminating employment.*fn5 Matty v. Unemployment Compensation Board of Review, 73 Pa. Commonwealth Ct. 311, 312, 457 A.2d 1039, 1040 (1983). The Board was therefore correct in holding Claimant ineligible for unemployment compensation benefits.

Order

The order of the Unemployment Compensation Board of Review, No. B-229690, dated April 30, 1984, is affirmed.

Disposition

Affirmed.


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