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Amy Shupp v. Unemployment Compensation

April 21, 2011

AMY SHUPP, PETITIONER
v.
UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, :
RESPONDENT



The opinion of the court was delivered by: Johnny J. Butler, Judge

Submitted: February 25, 2011

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JOHNNY J. BUTLER, Judge

OPINION BY JUDGE BUTLER

Amy Shupp (Claimant) petitions this Court for review of the August 23, 2010 order of the Unemployment Compensation Board of Review (UCBR) affirming the decision of a Referee and denying benefits accordingly. There are three issues before the Court: (1) whether it was error for the Referee to conclude that Claimant voluntarily quit her employment without cause of a necessitous and compelling nature, (2) whether the Referee's findings of fact are supported by substantial evidence, and (3) whether the Referee's denial of Claimant's counsel's subpoena request constituted an abuse of discretion or an error of law. For the reasons that follow, we reverse the UCBR's order.

Claimant was hired by Karl F. Longenbach, Esquire (Employer) as a paralegal beginning in January of 2001 and ending February 12, 2010. Claimant was advised that she would receive her pay every Friday. Throughout her nine years of working for Employer, however, she routinely received her pay one or two weeks late, and on occasion three or four weeks late.

On February 11, 2010, Claimant sent an email to Employer stating that as of February 12, 2010, she believed she was owed four weeks pay. On February 12, 2010, Claimant reported for work and found two paychecks on her desk. She was still owed the week ending February 5, 2010, and the week ending February 12, 2010. Claimant emailed Employer asking if he was going to respond to her previous email. Employer responded by email telling Claimant how important she was to his office, and that there were some issues they needed to discuss in person. Claimant attempted to contact Employer by phone but could not reach him. She subsequently emailed Employer that she had left the office and had already applied for unemployment compensation (UC) benefits.

On March 4, 2010, the Allentown UC Service Center mailed a notice of determination denying benefits under Section 402(b) of the Unemployment

Compensation Law (Law).*fn1 Claimant appealed, and a hearing was held by the Referee. On April 28, 2010, the Referee mailed his decision affirming the determination of the UC Service Center. Claimant appealed to the UCBR. The UCBR affirmed the Referee's decision as modified.*fn2 Claimant appealed to this Court.*fn3

Claimant argues that it was an error of law for the Referee to conclude that she voluntarily quit her employment without cause of a necessitous and compelling nature. Specifically, Claimant contends the evidence proves that she quit her employment because of Employer's failure to pay her in a timely manner and on an established payday. She contends that this constituted a compelling and necessitous reason to quit her job. We agree.

It is well established that:

An employee who claims to have left employment for a necessitous and compelling reason must prove that: (1) circumstances existed which produced real and substantial pressure to terminate employment; (2) such circumstances would compel a reasonable person to act in the same manner; (3) the claimant acted with ordinary common sense; and, (4) the claimant made a reasonable effort to preserve her employment.

Brunswick Hotel & Conf. Ctr., LLC v. Unemployment Comp. Bd. of Review, 906 A.2d 657, 660 (Pa. Cmwlth. 2006). Where an employee terminates an employment relationship because of the employer's repeated failure to pay wages in a timely manner and on an established pay day, Pennsylvania's Wage Payment and Collection Law*fn4 is implicated. Section 4 of the Wage Payment and Collection Law generally provides:

It shall be the duty of every employer to notify his employes at the time of hiring of the time and place of payment and the rate of pay and the amount of any fringe benefits or wage supplements to be paid to the employe ... or ... for the benefit of the employe...

43 P.S. ยง 260.4. Moreover, Section 3 of the Wage Payment and Collection Law is absolutely explicit in its statement that: "Every employer shall pay all wages ... due to his employes on regular ...


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