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NORMAN ASHTON KLINGER & ASSOCIATES v. COMMONWEALTH PENNSYLVANIA (06/30/89)

decided: June 30, 1989.

NORMAN ASHTON KLINGER & ASSOCIATES, P.C., PETITIONER,
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



PETITION FOR REVIEW

COUNSEL

Norman Ashton Klinger, Norman Ashton Klinger & Associates, P.C., Norristown, pro se.

No appearance for respondent.

Steven M. Plon, Philadelphia, for intervenor/claimant, Glenn C. Romano.

Doyle and Palladino, JJ., and Narick, Senior Judge.

Author: Narick

[ 127 Pa. Commw. Page 294]

Norman Ashton Klinger & Associates, P.C. (Employer) has appealed from an order of the Unemployment Compensation Board of Review which affirmed a referee's decision to grant unemployment compensation benefits to Glenn C. Romano (Claimant).

The referee found the following facts, which were adopted by the Board. Claimant, an attorney, was employed by Employer from November 30, 1987 to February 16, 1988. Sometime in the middle of January 1988, Employer informed Claimant that he*fn1 was dissatisfied with his work and that Claimant should start to look for a new job. Shortly thereafter, on January 29, 1988, Employer requested that Claimant limit the time he would remain in Employer's employ while he looked for a job and the parties agreed that Claimant would have a maximum of three more weeks of continued employment. On February 16, 1988, Claimant approached Employer requesting severance pay and was advised that he was not entitled to such pay. Claimant stated "then I might as well leave now" and Employer asked for his keys.

Based upon these findings, the referee concluded that Claimant's separation from employment was involuntary, as

[ 127 Pa. Commw. Page 295]

    no continuing work was available to him. The referee further found that, although Employer was dissatisfied with Claimant's work, Claimant did his assigned duties to the best of his ability. Accordingly, the referee concluded that Claimant's actions did not rise to the level of willful misconduct.

Employer raises two alternative arguments for our review: 1) whether Claimant's conduct constituted willful misconduct justifying both his dismissal and a denial of benefits, and 2) whether Claimant's separation from employment was voluntary. Logic dictates that the latter issue be addressed first.

The threshold issue, where a voluntary quit is alleged, is a determination of whether the facts surrounding a claimant's separation from employment indicate a voluntary resignation or a discharge. Maines v. Unemployment Compensation Board of Review, 110 Pa. Commonwealth Ct. 601, 532 A.2d 1248 (1987). This is a question of law, subject to our review. Id. It is a claimant's burden to prove that he was discharged. Torsky v. Unemployment Compensation Board of Review, 81 Pa. Commonwealth Ct. 642, 474 A.2d 1207 (1984). Here, the referee found that Employer told Claimant in mid-January that he was dissatisfied with his work and that Claimant should seek employment elsewhere. At that time, no termination date was set. Then, on January 29, 1988, Employer ...


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