Opinion
August 4, 1986.
Unemployment compensation — Scope of appellate review — Inconsistent findings — Capricious disregard of competent evidence — Burden of proof — Voluntary termination — Cause of a necessitous and compelling nature — Change in conditions.
1. In an unemployment compensation case where the claimant with the burden of proving a necessitous and compelling cause for voluntarily terminating employment did not prevail below, review by the Commonwealth Court of Pennsylvania is to determine whether findings of fact were consistent with each other and with the conclusions of law and can be sustained without a capricious disregard of competent evidence. [418-19]
2. An unemployment compensation claimant can meet his burden of establishing a necessitous and compelling cause for voluntarily terminating employment by showing a substantial change in employment conditions or that he was unaware of unsuitable conditions when he accepted the employment. [419]
3. A substantial unilateral change in an employment agreement requiring the employee to commute up to eighty miles to various assignments with little advance notice constitutes a necessitous and compelling cause for terminating employment and does not preclude the employe from receiving unemployment compensation benefits. [419]
Submitted on briefs December 16, 1985, to President Judge CRUMLISH, JR., Judge ROGERS, and Senior Judge KALISH, sitting as a panel of three.
Appeal, No. 564 C.D. 1983, from the Order of the Unemployment Compensation Board of Review, in case of In Re: Claim of Jack Shingles, No. B-214168.
Application with the Office of Employment Security for unemployment compensation benefits. Benefits denied. Applicant appealed to the Unemployment Compensation Board of Review. Denial affirmed. Applicant appealed to the Commonwealth Court of Pennsylvania. Held: Reversed.
Stanley M. Shingles, for petitioner.
Richard F. Faux, Associate Counsel, with him, Charles G. Hasson, Acting Deputy Chief Counsel, for respondent.
Jack Shingles appeals an Unemployment Compensation Board of Review order upholding a referee's decision which denied him benefits due to a voluntary quit without necessitous and compelling reason. Section 402(b) of the Unemployment Compensation Law. We reverse.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P. S. § 802(b).
Shingles, a pharmacist employed by the Rite Aid Corporation, was assigned to two company stores located in Quakertown. Several months later he agreed to a temporary transfer to an East Stroudsburg store, involving a ninety-five mile roundtrip commute. As a result of his complaints, Shingles was transferred back to the Quakertown area as a "fill-in," or floater, servicing twelve to fifteen stores. Shingles quit in response to this assignment.
Where the claimant, who has the burden of demonstrating necessitous and compelling cause for voluntarily leaving his employment, does not prevail below, our scope of review is limited to determining whether the Board's findings are consistent with each other and with the conclusions of law and whether they can be sustained without a capricious disregard of competent evidence. Zingler v. Unemployment Compensation Board of Review, 85 Pa. Commw. 313, 481 A.2d 994 (1984).
Shingles contends that the requirements of his position were so radically altered by the employer that he was justified in resigning. We agree.
A claimant can meet his burden of proving a necessitous and compelling reason for terminating his employment by showing that the employment conditions changed or that he was reasonably unaware of the unsuitable conditions when he accepted the employment. Naylon v. Unemployment Compensation Board of Review, 83 Pa. Commw. 502, 477 A.2d 912 (1984).
Clearly, an assignment to one of two stores located in Quakertown, a convenient commuting distance from the claimant's home, differs appreciably with Shingles' last assignment as a temporary fill-in for twelve to fifteen stores on the periphery of the Quakertown-Allentown area.
An employee must accept reasonable changes. However, Shingles was not hired to work at a different pharmacy every day with commutes of up to eighty miles roundtrip and little advance notice as to each new assignment. Although Shingles worked under these changed circumstances for a period of time, he did so with the understanding that the changes were only temporary. When it became clear that Shingles would not be returned to his original position, he was justified in quitting.
We hold that there was a substantial unilateral change in the employment agreement which rendered Shingles' job unsuitable, and Shingles' voluntary quit was for a necessary and compelling reason. Accordingly, the Board erred as a matter of law in upholding the denial of benefits.
Reversed.
ORDER
The Unemployment Compensation Board of Review order, No. B-214168 dated January 28, 1983, is reversed.