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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
David Elicker,

:

Petitioner

:

:

v.

: No. 1324 C.D. 2004

:
Unemployment Compensation
:
Board of Review,

:

Respondent

:
Kathy L. VanBuskirk,
:

Petitioner

:

:

v.

: No. 1326 C.D. 2004

:
Unemployment Compensation
:
Board of Review,

:

Respondent

:
Dan A. Ahlersmeyer, Thomas R. :
Anderson, David L. Banks, Thomas P. :
Bihler, Maryann Borowy, Barbara A. :
Brown, Jeanne Buettner, Heidi A.
:
Clement, David J. Conley, Honey A. :
Dean, Charles T. Detzel, Donna L.
:
Dixon, Chester D. Donikowski,
:
Melvin L. Edwards, Charles E. Frick, :
Mark J. Gaeta, Dominic C. Gangemi, :
Kathleen Gerbik, Eileen P. Gigliotti, :
Jean D. Hammer, Michael J. Harrison, :
Helen J. Hundley, Paul J. Kaiser,
:
Stanley G. Krahnke, Theresa M. Lucas, :
Audrey M. MacArthur, Deborah A. :
McCallum, Joan M. Mifsud, Barbara J. :
Minor, Charlene A. Nelson, Sandra :
L. Nelson, Mary A. Piotrowski, Melody :
A. Reddecliff, Robert D. Reinhart, :
Gayle E. Robinson, William D. Robson, :
Gary W. Sanders, Floyd A. Sittig,
:
Patricia A. Sokoloff, Diane C. Walker, :
Martha E. Wegemer, George A.
:
Wolkosz, Kathleen J. Wisniewski,
:
Tina J. Woodring,

:

Petitioners

:

:
v.

:
No
1334
C.D.
2004

:
Unemployment Compensation
:
Board of Review,

:

Respondent

:
Monica Kauffmann-Wynne
:

Petitioner

:

:

v.

: No. 1349 C.D. 2004

:
Unemployment Compensation
:
Board of Review,

:

Respondent

:
Charles J. Dowd,

:

Petitioner

:

:

v.

: No. 1404 C.D. 2004

:
Unemployment Compensation
:
Board of Review,

:

Respondent

:
Mark J. Chetoni,

:

Petitioner

:

:

v.

: No. 1463 C.D. 2004

:
Unemployment Compensation
:
Board of Review,

:

Respondent

:
Anthony A. Fego,

:

Petitioner

:

:

v.

: No. 1464 C.D. 2004

:
Unemployment Compensation
:
Board of Review,

:

Respondent

:

Jane W. Bortner,

:

Petitioner

:

:

v.

: No. 1536 C.D. 2004

:
Unemployment Compensation
: Submitted: December 3, 2004
Board of Review,

:

Respondent

:
BEFORE: HONORABLE ROCHELLE S. FRIEDMAN, Judge

HONORABLE ROBERT SIMPSON, Judge

HONORABLE JOSEPH F. McCLOSKEY, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE SIMPSON
FILED: March 22, 2005

These eight consolidated appeals involve 51 former employees of
Verizon (Employer) who accepted some form of a voluntary retirement offer and
who now assert the Unemployment Compensation Board of Review (Board) erred
when it determined they were ineligible for benefits under Section 402(b) of the
Unemployment Compensation Law (Law)1 (voluntary leave without cause of a
necessitous and compelling nature).

After each claimant accepted a voluntary retirement offer, each
claimant applied for unemployment compensation benefits. Each claimant here
was denied benefits and appealed. Hearings were held before eight different
referees across Pennsylvania. Each claimant here was again denied benefits and

1 Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S.
§802(b).

appealed. Ultimately, the Board denied benefits, adopting the referee's opinion in
some cases. Each claimant now appeals to this Court.2

A significant fact common to all the consolidated appeals is the
receipt of some financial benefit from Employer to accept the voluntary retirement
offer.3 Common factual issues include whether a claimant's belief that his or her
job is imminently threatened was well founded, and whether continuing work was
available.

A legal issue common to all of the present appeals is application of
Section 402(b) of the Law, "An employe shall be ineligible for compensation for

2 In unemployment compensation cases, our review is limited to determining whether
constitutional rights were violated, errors of law were committed, or findings of fact are
supported by substantial evidence. Renda v. Unemployment Comp. Bd. of Review, 837 A.2d
685 (Pa. Cmwlth. 2003).

We note that "the capricious disregard standard of review," previously applicable where
only the party with the burden of proof presented evidence and did not prevail before the
administrative agency, is now "an appropriate component of appellate consideration in every
case in which such question is properly brought before the court." Leon E. Wintermyer, Inc., v.
Workers' Comp. Appeal Bd. (Marlowe), 571 Pa. 189, 203, 812 A.2d 478, 487 (2002). This
standard will generally assume a more visible role on consideration of negative findings and
conclusions. Id. Nevertheless, it is not to be applied in such a manner as would intrude upon
the agency's fact-finding role and discretionary decision-making authority. Id. at 204, 812 A.2d
at 487-88. Where a party does not argue that the fact-finder capriciously disregarded competent
evidence, the standard is not applicable. Sun Home Health Visiting Nurses v. Workers' Comp.
Appeal Bd. (Noguchi), 815 A.2d 1156 (Pa. Cmwlth. 2003).
3 Details of the benefits package appear in some records, but not in others. Generally, the
claimants were offered a Management Voluntary Separation Program (MVSP) package that
included: 1) a lump-sum payment of two weeks' pay times years of service; 2) an additional
lump-sum payment of $15,000, $20,000, or $30,000, depending on career band; 3) an increase in
pension benefits by five percent; 4) a prorated VIP incentive payment, based on business and
(Footnote continued on next page...)
2

any week ... (b) In which his unemployment is due to voluntarily leaving work
without cause of a necessitous and compelling nature ...." 43 P.S. §802(b).
Necessitous and compelling cause "results from circumstances which produce
pressure to terminate employment that is both real and substantial, and which
would compel a reasonable person under the circumstances to act in the same
manner." McCarthy v. Unemployment Comp. Bd. of Review, 829 A.2d 1266,
1270 (Pa. Cmwlth. 2003)(citations and quotations omitted).

This Court recently addressed unemployment compensation for
employees who accepted voluntarily early retirement in Renda v. Unemployment
Comp. Bd. of Review, 837 A.2d 685 (Pa. Cmwlth. 2003). In Renda, which
involved the same Employer, claimants accepted an early retirement incentive
package offer. We noted,

In the context of corporate downsizing, the critical
inquiry is whether the fact-finder determined the
circumstances surrounding a claimant's voluntary quit
indicated a likelihood that fears about the employee's
employment would materialize, that serious impending
threats to her job would be realized, and that her belief
her job is imminently threatened is well-founded.

Id. at 692 (footnote omitted)(emphasis added). We further summarized,
"[S]peculation pertaining to an employer's financial condition and future layoffs,
however disconcerting, does not establish the requisite necessitous and compelling

(continued...)

individual/team performance; 5) preservation of low interest rates; 6) medical and life insurance
benefits for one year; and 6) financial planning assistance.
3

cause ...." Id. (quoting Staub v. Unemployment Comp. Bd. of Review, 673 A.2d
434, 437 (Pa. Cmwlth. 1996)(citation omitted)).

We addressed this issue even more recently in Johnson v.
Unemployment Comp. Bd. of Review, ___ A.2d ___ (Pa. Cmwlth, No. 964 C.D.
2004, filed March 7, 2005). Johnson, which also involved former employees of
Employer who accepted voluntary retirement offers, confirmed the importance of
the "critical inquiry" noted in Renda. In Johnson, we noted it is important whether
the claimant produced direct evidence that employment would be eliminated if the
offer was not accepted. We also stated more weight may be given to
communications specific to the claimant rather than general information
disseminated by the Employer.

With that legal background, we turn to each claimant's argument
before this Court.

A.
David Elicker, No. 1324 C.D. 2004

Elicker worked for Employer for 31 years prior to accepting the
MVSP.4 After his benefits were initially denied, Elicker appealed.

At the hearing before the referee, Elicker testified he accepted the
MVSP because he was concerned about his future with Employer due to several
factors, including the rumored sale of some of Employer's properties, the fact

4 The record does not contain the documents offering Elicker the opportunity to
participate in the MVSP and explaining the terms of the MVSP to him.
4

Employer stated it needed to downsize, and the financial incentives involved.
Notes of Testimony (N.T.) February 6, 2004 at 3-5. Elicker expressed concern as
to why some employees who accepted a voluntary retirement incentive package
from Employer were granted unemployment compensation while others were not,
although he did not testify to any specific such employees. N.T. at 5. Elicker
testified he was never told his job was in jeopardy, although no one told him it was
secure, either. N.T. at 6.

Employer's witness testified continuing work was available to Elicker
and Elicker's separation from employment was voluntary. N.T. at 8-10.

The Board found Elicker accepted the MVSP due to uncertainty about
his future with Employer, and Employer did not tell him his position was in
jeopardy. Finding of Fact (F.F.) Nos. 3-5. The Board found continuing work was
available to Elicker. F.F. No. 6. Accordingly, the Board denied benefits.

On appeal, Elicker represents himself and argues: 1) he proved
necessitous and compelling cause for leaving his job with Employer; and 2) he
questions why other Employer employees received benefits while he did not.

As to Elicker's first argument, we disagree. The fact-finder is not
bound to draw the same inference of job threat as a claimant, and the fact-finder
may rely on direct evidence, or the lack of it, in making its decision. Johnson.
Here, because there is no direct evidence of the threat of job elimination, there is
no error in the critical finding that Employer did not tell Elicker that his position
was in jeopardy. Id.
5

Further, more weight may be afforded to communications specific to
the claimant than to general information disseminated to other employees. Thus,
in Renda, the fact-finder determined the employer "never specifically told any of
the Claimants they would be laid off ...." Renda, 837 A.2d at 691. Also, in Staub,
the fact-finder determined the claimant "was not informed that his job or
department would be eliminated." Staub, 673 A.2d at 436. In both cases we found
no error in the conclusion that the claimants voluntarily left work without a
necessitous and compelling reason.

Elicker's testimony regarding his fears about his future employment
amounted to no more than speculation. As this Court held in Staub, the mere fact
of the MVSP offer is not enough to prove necessitous and compelling cause.
Similarly, Elicker's speculation that he would be laid off at some future time does
not rise to the level of necessitous and compelling cause. Flannery v.
Unemployment Comp. Bd. of Review, 557 A.2d 52, 54 (Pa. Cmwlth.
1989)("Claimant attempts to justify his decision by arguing that his eventual lay-
off was inevitable, but such argument is purely speculative.").

As in Renda, Elicker was never specifically told he would be laid off.
As in Renda, we agree Elicker failed to carry his burden of proof.

Elicker's second argument also fails. The record before us contains
no evidence of the disposition of other unemployment compensation claims. A
careful review of the transcript of the hearing reveals Elicker did not attempt to
introduce specific evidence of other former employees of Employer who accepted
voluntary early retirement incentive packages but were granted benefits.

6

Accordingly, there are no facts of record in support of Elicker's second argument.
Johnson. We affirm.

B.
Kathy L. VanBuskirk, No. 1326 C.D. 2004

VanBuskirk worked for Employer for 25 years at the time she
accepted voluntary retirement offered by Employer.5 After her benefits were
initally denied, VanBuskirk appealed.

At the hearing before the referee (that Employer did not attend),
VanBuskirk testified she accepted the offer because she feared for her job. She
stated she was told her position was not figured into a reorganization that was
taking place. N.T. February 18, 2004 at 4. She testified she was the support
administrator for nine engineers initially, which was reduced to four or possibly
three at the time she accepted the offer. N.T. at 6. She further testified she asked
for a transfer to another position but was denied. Id. She stated she "interpreted"
that her job was being eliminated. Id.

VanBuskirk submitted a print-out of an e-mail from a human
resources manager dated November 21, 2003, that stated, without the voluntary

5 It is unclear what voluntary separation offer VanBuskirk accepted. The record contains
only the first page of her offer documents. Ex. C-1. That page states,

We are pleased to inform you that you are among a group of
employees who are eligible to volunteer for a reduction in force
(RIF). You have 45 days to consider volunteering, with all
volunteer forms required by 11:59 p.m. on November 14, 2003.
Should you volunteer, your last day on payroll as an employee will
be November 21, 2003.
7

retirement incentive program, "we would have been going through significant
layoffs over the next two or three years ...." Ex. C-2. VanBuskirk testified the
incentive package provided her with a 5% pension enhancement and a payment of
$55,000. N.T. at 4.

The referee found Employer did not advise VanBuskirk her job would
be eliminated or that continuing work was unavailable to her. F.F. No. 5. The
referee concluded VanBuskirk's fears about the future of her job were speculative
and that she did not demonstrate necessitous and compelling cause for leaving her
job.

On appeal, VanBuskirk represents herself, and she argues: 1) she
proved necessitous and compelling cause; and 2) she is being treated differently
than other claimants who accepted voluntary retirement incentive plans offered by
Employer.

We disagree with VanBuskirk's first argument. There is no evidence
VanBuskirk's employment would be terminated, even if her previous position was
not available. The general e-mail on which VanBuskirk relies refers to significant
layoffs without specifying location. Moreover, it indicates those layoffs would
take place over the next few years. A possible layoff a few years in the future does
not amount to such an imminent threat to employment to be necessitous and
compelling cause for voluntarily leaving work. See, e.g., Gackenbach v.
Unemployment Comp. Bd. of Review, 414 A.2d 770 (Pa. Cmwlth.
1980)(possibility of termination three or four months in the future not sufficient to
create "imminent" threat to employment). We discern no error in the finding that
there was no imminent threat to VanBuskirk's employment.
8

As to Van Buskirk's second argument, that she is being treated
unfairly in comparison to others who received unemployment benefits, we discern
no error. The record before us contains no evidence of the disposition of other
unemployment compensation claims.6 Accordingly, there are no facts of record in
support of VanBuskirk's second argument. Johnson. We affirm.

C.
Dan A. Ahlersmeyer et al., No. 1334 C.D. 2004

The 44 claimants in these appeals each accepted the MVSP. After
they were initially denied benefits, these cases were consolidated for a hearing
before the referee. After the hearing, the referee issued separate decisions with
respect to each claimant.

In each determination, the referee found acceptance of the MVSP was
voluntary, and claimants were free to accept or reject it. F.F. No. 18. The referee
also found the claimants were not told they would be terminated if they did not
accept the MVSP. F.F. No. 19. The referee found continuing work was available
to the claimants if they did not accept the MVSP. F.F. No. 20.

The referee concluded each claimant failed to demonstrate necessitous
and compelling cause for terminating employment because the claimants were not
told their jobs would be lost and the claimants' fears about job security amounted

6 VanBuskirk attached to her brief a referee decision in another case that she claims
supports this argument. However, because this decision was not entered into the record before
the referee or the Board, it is not part of the record before this Court and we may not consider it
on appeal.

9

to no more than speculation. In each case, the Board adopted the findings and
conclusions of the referee and affirmed.

On appeal, claimants through counsel argue they proved necessitous
and compelling cause for terminating their employment. They rely primarily on
three factors: 1) the question-and-answer portion of a booklet prepared by
Employer discussing the MVSP; 2) an e-mail sent by Employer's Executive Vice-
President of Human Resources; and 3) each claimant's testimony of the sense of
job jeopardy.

First, claimants rely on statements made in a booklet prepared by
Employer. In response to the question of why the MVSP was being offered, the
booklet indicates it was being offered to reduce costs and to stimulate voluntary
management reductions. N.T. February 11, 2004 at 17. Claimants assert this
sends an "unambiguous message" that Employer needed to "get rid of a lot of
[them]" and it raised the question of what would happen to their jobs if not enough
people were eliminated voluntarily.

As we noted in Johnson, more weight may be given to person-specific
communications than to general communications. Moreover, the general booklet
message says nothing about possible layoffs or terminations, and it does not
identify any specific positions subject to reduction. Each claimant's reaction to
this ambiguous message amounted to speculation and does not require a finding of
necessitous and compelling cause.

Second, claimants rely on a previously-referenced e-mail that stated,
"If we did not have this type of program, we would have been going through

10

significant layoffs over the next two or three years ...." Claimants argue this lends
further credence to the fact that their jobs were imminently threatened. We
disagree. As discussed before, a possible layoff in a few years does not amount to
such an imminent threat to employment as to compel voluntarily leaving work.
Gackenbach.

Third, claimants rely on their statements that they felt their jobs were
in jeopardy. A careful review of the testimony, however, reveals no instance
where someone specifically told any of the claimants they would be laid off. In
Renda, such a finding was significant to the ultimate conclusion that the claimants
failed to prove compelling reason for accepting a voluntary separation offer.
Similarly, claimants' feelings here amount to speculation which will not support a
finding of necessitous and compelling cause.

Where, as here, the Employer did not specifically tell a claimant he
would be laid off, and continuing work was available, no error is evident in the
conclusion that the claimants failed to prove voluntary termination was compelled.
Johnson; Renda. Accordingly, we affirm.

Three claimants argue there are special circumstances, in addition to
those noted above, entitling them to benefits. We discuss each in turn.

1. Mark
J.
Gaeta

Gaeta argues his circumstances compel reversal. The referee found
Gaeta was a manager of a retail store in Erie, Pennsylvania. F.F. No. 19.
Employer closed some of its retail stores around the country, and Gaeta was told

11

there was a real possibility there would be other store closings. F.F. Nos. 20-21.
As of September 2003, Gaeta was supervising only 6 people, where he previously
supervised 12. F.F. No. 22. The referee found, however, Gaeta was not told the
Erie store would be closed. F.F. No. 23.

Gaeta argues these circumstances are enough to amount to necessitous
and compelling cause. We disagree. The possibility that unspecified stores might
close in the future does not mean the Erie store was among them. Moreover, there
was no indication Employer would terminate Gaeta's employment even if the Erie
store closed. Accordingly, Gaeta failed to establish an imminent threat to his
employment, and we affirm.

2. Thomas
R.
Anderson

Anderson argues he had necessitous and compelling cause for
terminating his employment because it became apparent to him that the office in
which he worked was being phased out. At the hearing, Anderson testified he was
a sales person who, by October 2003, did not know where he would work next.
N.T. at 86. He testified, however, he did not ask his supervisors where he would
be going next. N.T. at 89. Moreover, he testified no one told him he would not
have a job if he did not accept the MVSP, and he assumed his supervisor was
doing everything possible to ensure he had work. N.T. at 90-91.

These circumstances amount to speculation about continuing
employment. Anderson was not told his job would be eliminated. Although he
questioned where he would next work, he did not ask anyone in authority. Nothing
in the record here indicates Anderson's job was being imminently threatened.

12

Anderson makes a second argument that the referee's F.F. No. 26 was
not supported by substantial evidence. This finding states, "The claimant's wages
were not directly affected by the loss of the Alltel contract, but the reason for the
claimant's drop in wages was that he was taken off guaranteed salary and placed
on salary plus commission."

Anderson did not contend, and the fact-finder did not find, that the
change in salary structure was the reason for his voluntary quit. Rather, the fact-
finder determined the voluntary retirement offer was the cause. Therefore, the
finding regarding salary structure was not material to the critical inquiry of
whether there was an imminent threat to Anderson's job. See Johnson (claimant
McLaughlin's leaving caused by MVSP, not by changes in employment conditions
and compensation arrangements). Any error was harmless. See, e.g., Sturpe v.
Unemployment Comp. Bd. of Review, 823 A.2d 239, 242 (Pa. Cmwlth.
2003)(error harmless when it has "no effect on the outcome of [the] case"); Hussey
Copper Ltd. v. Unemployment Comp. Bd. of Review, 718 A.2d 894 (Pa. Cmwlth.
1998)(error harmless when it is not material to the outcome of the case).

Accordingly, we affirm.

3.
Barbara J. Minor

Minor was a division sales artist responsible for producing
advertisements. N.T. at 125. She testified her work load decreased significantly
prior to the MVSP offer. N.T. at 126. She stated there were things for her to do,
but not enough for her to produce her quota of eight per day. Id. Minor testified
her office decreased in numbers, but her supervisor told her not to worry about

13

anything because there were new jobs coming in that would allow her to create
more advertisements. N.T. at 128.

Minor also stated she considered retiring in the summer of 2003 to
take care of her elderly father, and when the MVSP package was offered, "it was
like a God's gift for me because I thought wow this is really amazing." N.T. at
129. Minor also testified she was told, within the period she could have rescinded
her decision to accept the MVSP, that Employer was hiring a replacement for her.
N.T. at 129-132.

Minor argues she proved necessitous and compelling cause due to the
ongoing reductions in staff and the lack of advertisement work. We disagree.
Minor was told not to worry about her job and work would be picking up.
Moreover, Minor knew continuing work was available to her within the rescission
period, because she was told a replacement was being hired for her. Where, as
here, the Employer did not specifically tell a claimant that she would be laid off,
and continuing work was available, no error is evident in the conclusion that the
claimant failed to prove her voluntary separation was compelled. See Renda.
Accordingly, we affirm.

D.
Monica Kauffmann-Wynne, No. 1349 C.D. 2004

14

Kauffmann-Wynne worked for Employer for approximately 29 years
when she accepted a voluntary retirement incentive package offered by Employer.7
After her benefits were initially denied, Kauffmann-Wynne appealed.

At the hearing before the referee (that Employer did not attend),
Kauffmann-Wynne testified she accepted the offer because she felt her job was not
secure due to increased mechanization of her job responsibilities. N.T. February
10, 2004 at 5. Kauffmann-Wynne stated she was told by her manager Employer
was "thinking" of merging some of the job functions. Id. Kaufmann-Wynne
testified, if she did not accept the offer, she would have to vie for another position
with Employer. N.T. at 6.

However, no one said her employment would be terminated if she did
not accept the offer. N.T. at 5. Kauffmann-Wynne admitted her employment was
not terminated during previous reorganizations. N.T. at 6-7.

The referee concluded Kauffmann-Wynne's fears about her future job
security amounted to speculation. The referee found that no one told Kauffmann-
Wynne that her employment would be eliminated, and that continuing work was
available. F.F. 8, 10. He concluded she did not prove cause of a necessitous and
compelling nature for leaving her job.

7 It is unclear what voluntary separation offer Kauffmann-Wynne accepted. The record
does not include the offer documents. The terms of the offer are not indicated in the record,
other than that Kauffmann-Wynne received a payment of $95,000 and a five percent increase in
her pension. Certified Record (C.R.) No. 3.

15

On appeal, Kauffmann-Wynne represents herself and argues she
proved necessitous and compelling cause. We disagree. As noted above, the fact-
finder is not bound to draw the same inference as a claimant. Kauffmann-Wynne's
testimony that she would be laid off in the future amounts to mere speculation of
the type this Court consistently holds does not amount to necessitous and
compelling cause. Johnson; Flannery. Where, as here, the Employer did not
specifically tell a claimant that she would be laid off, and continuing work was
available, no error is evident in the conclusion that the claimant failed to prove her
voluntary retirement was compelled. Johnson; Renda. We affirm.

E.
Charles J. Dowd, No. 1404 C.D. 2004

Dowd worked for Employer for approximately 27 years at the time he
accepted the MVSP. After his benefits were initially denied, Dowd appealed.

At the hearing before the referee (that Employer did not attend),
Dowd testified he accepted the MVSP because, "the company presented a lot of
information that led me to believe I would never get a better, a better program
under which to leave." N.T. March 5, 2004 at 4. Dowd testified there were no
other reasons he accepted the MVSP. N.T. at 5-6. He testified continuing work
was available to him and he did not know if his job would be affected if he did not
accept the MVSP. N.T. at 6. He stated it was his understanding that he would still
remain employed. Id.

The referee concluded Dowd presented no evidence of a necessitous
and compelling cause for leaving his job, and denied benefits.

16

On appeal, Dowd represents himself. He first argues entitlement to
benefits under the voluntary layoff option proviso (VLO proviso) in Section 402(b)
of the Law. The VLO proviso states,

[N]o otherwise eligible claimant shall be denied benefits
for any week in which his unemployment is due to
exercising the option of accepting a layoff, from an
available position pursuant to a labor-management
contract agreement, or pursuant to an established
employer plan, program or policy ....

43 P.S. §802(b) (emphasis added).

This Court consistently holds the VLO proviso does not apply where
the claimant accepts an early retirement incentive package. See, e.g., George;
Flannery; Sievers v. Unemployment Comp. Bd. of Review, 555 A.2d 260 (Pa.
Cmwlth. 1987), aff'd, 520 Pa. 83, 551 A.2d 1057 (1989). Recently, we were asked
to overrule those holdings in both Johnson and Renda, but we declined to do so.
We again decline to do so and conclude the VLO proviso does not apply to Dowd
because he accepted an early retirement package.

Dowd's second argument on appeal is that he demonstrated
necessitous and compelling cause for terminating his employ. We disagree.
Dowd did not testify, nor did the referee find, that he feared for his future with
Employer. To the contrary, Dowd testified continuing work was available to him
and he believed he would remain employed if he did not accept the MVSP.
Accordingly, Dowd failed to satisfy the "critical inquiry" that fears about his
employment would materialize, serious impending threats to his job would be

17

realized, and his belief his job was imminently threatened was well-founded.
Johnson; Renda. We affirm.

F.
Mark J. Chetoni, No. 1463 C.D. 2004

Chetoni worked for Employer for 37 years prior to accepting the
MVSP. After his benefits were initially denied, Chetoni appealed.

At the hearing before the referee (that Employer did not attend),
Chetoni testified he worked as an area manager in York, and he was asked to
transfer to Scranton in September 2003. N.T. February 10, 2004 at 2-3. He
declined to do so and accepted the MVSP. N.T. at 3. He testified three area
managers retired and two were replaced. Id. Chetoni testified he was not told his
job was ending, but he felt there was a good chance he would have to move or be
terminated. N.T. at 4.

The Board found Chetoni accepted the MVSP based on speculation
his job was in jeopardy. The Board also found continuing work was available to
him. The Board concluded Chetoni did not establish necessitous and compelling
cause for terminating his employment.

On appeal, Chetoni represents himself. He first argues he established
necessitous and compelling cause. We disagree. Chetoni was not told his job
would be ending. Rather, he felt there was a "good chance" he might be
terminated, or that he would have to move. Under these circumstances Chetoni's
fears about his job future were mere speculation and do not rise to the level of
showing an imminent threat to his employment. Renda.

18

As to Chetoni's second argument, that he is being treated unfairly in
comparison to others who received unemployment benefits, we discern no error.
As with other claimants here, the record before us contains no evidence of the
disposition of other unemployment compensation claims. Accordingly, there are
no facts of record in support of Chetoni's second argument. Johnson. We affirm.

G.
Anthony A. Fego, No. 1464 C.D. 2004

Fego worked for Employer for 34 years before he accepted the
MVSP. After his benefits were initially denied, Fego appealed.

At the hearing before the referee (that Employer did not attend), Fego
testified he accepted the MVSP because he was told his job was being phased out
at some time in the future. N.T. March 4, 2004 at 3. However, he stated he was
not told his employment would be terminated; rather, he would be reassigned, but
the Employer did not know where he would be working or what he would be
doing. N.T. at 3-4.

The Board found Fego accepted the MVSP on speculation his job
would be eliminated. The Board also found continuing work was available to him.
The Board concluded Fego did not demonstrate necessitous and compelling cause
for terminating his employment.

Fego's first argument on appeal is that the Board's finding that
continuing work was available to him was not based on substantial evidence. Fego
argues the fact that Employer offered no testimony that continuing work was
available precludes such a finding.

19

We disagree, for two reasons. First, the burden in a Section 402(b)
case remains on the employee who voluntarily terminates his employment to prove
the termination was necessitous and compelling. Mansberger v. Unemployment
Comp. Bd. of Review, 785 A.2d 126 (Pa. Cmwlth. 2001). As we recently stated,
"there is no authority for the proposition that an employer has any burden of proof
with respect to a claim for benefits under 402(b)." Johnson, ___ A.2d at ___.
Rather, if an employer chooses not to put forth evidence regarding continuing
work, the burden remains on the claimant to demonstrate necessitous and
compelling cause. Johnson. Second, the finding that continuing work was
available to Fego if he did not accept the MVSP is supported by Fego's own
testimony he would be reassigned if his job was phased out. Accordingly, we
discern no error.

Fego next contends he proved necessitous and compelling cause for
terminating his employment. Again, we disagree. Nothing in Fego's testimony
demonstrates an imminent threat to his employment. Even though he was told his
job would be phased out at some point in the future, this does not represent the
type of imminent threat that proves necessitous and compelling cause. See, e.g.,
Gackenbach (possibility of termination several months in the future does not
amount to necessitous and compelling cause). In addition, he testified work would
be available to him after his position was phased out. Accordingly, we discern no
error in the conclusion that Fego did not carry his burden of proving his voluntary
leaving was compelled.

Finally, Fego argues he is entitled to benefits under the VLO proviso.
For the reasons discussed above, the VLO proviso does not apply here because

20

Fego accepted a voluntary retirement incentive package. Johnson; Renda. We
affirm.

H.
Jane W. Bortner, No. 1536 C.D. 2004

Bortner worked for Employer for 36 years before she accepted the
MVSP. After her benefits were initially denied, Bortner appealed.

At the hearing before the referee (that Employer did not attend),
Bortner testified she was told by her supervisor the management team needed to be
reduced by 20%. N.T. February 25, 2004 at 4. She stated, if she did not accept the
MVSP, she would lose a significant portion of her pension if she then lost her job.
N.T. at 7. Bortner testified she was uncertain about her future with Employer
because she felt vulnerable to layoff as a non-union employee. N.T. at 8. Bortner
was told she would have a job "for that moment", but was not told anything
specific about her future. N.T. at 10.

The referee found Bortner felt vulnerable and insecure about her
future, although she was not informed her job was in jeopardy. The referee
concluded Bortner accepted the MVSP due to financial considerations, and her
fears about her job security were mere speculation. The Board affirmed.

On appeal, Bortner represents herself. She first argues she proved
cause of a necessitous and compelling nature. We disagree. Nothing in Bortner's
testimony supports a finding that her job was imminently threatened. The finding
that Bortner was not informed that her job was specifically in jeopardy is supported
by the record, specifically by the lack of direct evidence to the contrary. See

21

Johnson. This finding supports the conclusion that Bortner failed to prove her
leaving was compelled by job threat. See Renda.

Bortner also challenges the admission of a document into evidence.
Rather than appearing at the hearing, Employer faxed to the referee a document in
support of denying benefits. The referee admitted the document over Bortner's
objection. N.T. at 3. We agree admitting this document was error, but find the
error harmless.

While hearsay may support a finding of fact in an unemployment
compensation case, it may only do so if it is corroborated by other competent
evidence of record. Walker v. Unemployment Comp. Bd. of Review, 367 A.2d
366 (Pa. Cmwlth. 1976). Where an objection is properly raised, hearsay is not
competent evidence to support a finding. Id.

Here, the document submitted by Employer, a written statement
offered to prove the truth of its contents, is hearsay. Pa.R.E. 801. Thus, it was
error for the referee to admit the document. However, a careful review of the
referee's findings reveals the referee relied solely on Bortner's testimony, and she
did not rely on the hearsay evidence to support a finding. Accordingly, the error
was harmless. See, e.g., Sturpe; Hussey Copper Ltd.

Finally, Bortner argues denying benefits was error because Employer
did not submit evidence continuing work was available to her. However, as noted
above, Employer has no burden to put forth evidence in a Section 402(b) case such
as this. Johnson. The burden remained on Bortner to prove necessitous and
compelling cause, which she did not do. Id. Accordingly, we affirm.

22

Conclusion

For all the foregoing reasons, we affirm the determinations of the
Board in each of these consolidated appeals.

ROBERT
SIMPSON,
Judge

23

:
v.

:
No
1334
C.D.
2004

:
Unemployment Compensation
:
Board of Review,

:

Respondent

:
Monica Kauffmann-Wynne,
:

Petitioner

:

:

v.

: No. 1349 C.D. 2004

:
Unemployment Compensation
:
Board of Review,

:

Respondent

:
Charles J. Dowd,

:

Petitioner

:

:

v.

: No. 1404 C.D. 2004

:
Unemployment Compensation
:
Board of Review,

:

Respondent

:
Mark J. Chetoni,

:

Petitioner

:

:

v.

: No. 1463 C.D. 2004

:
Unemployment Compensation
:
Board of Review,

:

Respondent

:
Anthony A. Fego,

:

Petitioner

:

:

v.

: No. 1464 C.D. 2004

:
Unemployment Compensation
:
Board of Review,

:

Respondent

:

Jane W. Bortner,

:

Petitioner

:

:

v.

: No. 1536 C.D. 2004

:
Unemployment Compensation
:
Board of Review,

:

Respondent

:

O R D E R

AND NOW, this 22nd day of March, 2005, the orders of the
Unemployment Compensation Board of Review in each of the above-captioned
cases are AFFIRMED.

ROBERT
SIMPSON,
Judge

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
David Elicker,

:

Petitioner

:

:

v.

: No. 1324 C.D. 2004

:
Unemployment Compensation
:
Board of Review,

:

Respondent

:
Kathy L. VanBuskirk,
:

Petitioner

:

:

v.

: No. 1326 C.D. 2004

:
Unemployment Compensation
:
Board of Review,

:

Respondent

:
Dan A. Ahlersmeyer, Thomas R. :
Anderson, David L. Banks, Thomas P. :
Bihler, Maryann Borowy, Barbara A. :
Brown, Jeanne Buettner, Heidi A.
:
Clement, David J. Conley, Honey A. :
Dean, Charles T. Detzel, Donna L.
:
Dixon, Chester D. Donikowski,
:
Melvin L. Edwards, Charles E. Frick, :
Mark J. Gaeta, Dominic C. Gangemi, :
Kathleen Gerbik, Eileen P. Gigliotti, :
Jean D. Hammer, Michael J. Harrison, :
Helen J. Hundley, Paul J. Kaiser,
:
Stanley G. Krahnke, Theresa M. Lucas, :
Audrey M. MacArthur, Deborah A. :
McCallum, Joan M. Mifsud, Barbara J. :
Minor, Charlene A. Nelson, Sandra :
L. Nelson, Mary A. Piotrowski, Melody :
A. Reddecliff, Robert D. Reinhart, :
Gayle E. Robinson, William D. Robson, :
Gary W. Sanders, Floyd A. Sittig,
:
Patricia A. Sokoloff, Diane C. Walker, :
Martha E. Wegemer, George A.
:
Wolkosz, Kathleen J. Wisniewski,
:

Tina J. Woodring,

:

Petitioners

:

:
v.

:
No
1334
C.D.
2004

:
Unemployment Compensation
:
Board of Review,

:

Respondent

:
Monica Kauffmann-Wynne
:

Petitioner

:

:

v.

: No. 1349 C.D. 2004

:
Unemployment Compensation
:
Board of Review,

:

Respondent

:
Charles J. Dowd,

:

Petitioner

:

:

v.

: No. 1404 C.D. 2004

:
Unemployment Compensation
:
Board of Review,

:

Respondent

:
Mark J. Chetoni,

:

Petitioner

:

:

v.

: No. 1463 C.D. 2004

:
Unemployment Compensation
:
Board of Review,

:

Respondent

:
Anthony A. Fego,

:

Petitioner

:

:

v.

: No. 1464 C.D. 2004

:
Unemployment Compensation
:

Board of Review,

:

Respondent

:
Jane W. Bortner,
:

Petitioner

:

:

v.

: No. 1536 C.D. 2004

: Submitted: December 3, 2004
Unemployment Compensation
:
Board of Review,

:

Respondent

:
BEFORE: HONORABLE ROCHELLE S. FRIEDMAN, Judge

HONORABLE ROBERT SIMPSON, Judge

HONORABLE JOSEPH F. McCLOSKEY, Senior Judge
OPINION NOT REPORTED
DISSENTING OPINION
BY JUDGE FRIEDMAN

FILED: March 22, 2005

I respectfully dissent in part. As stated in Johnson v. Unemployment
Compensation Board of Review, ___ A.2d ___ (Pa. Cmwlth., No. 964 C.D. 2004,
filed March 7, 2005) (J. Friedman, dissenting), in my view, an employee meets the
burden of proving that his or her unemployment was caused by necessitous and
compelling circumstances by establishing that: (1) the employer tried to induce the
employee's termination of employment by offering the employee incentives to
quit; and (2) the employer was silent as to whether the employee's refusal of the
offer would result in the loss of employment.

In some of the consolidated cases here, the employee met this burden
of proof. However, the employee did not meet this burden of proof in every case.

For example, in the case of Barbara J. Minor, the employer was not silent about her
prospects for continued employment. The employer told the claimant not to worry
about her job and that there would be work for her despite the downsizing. In fact,
after the claimant accepted the early retirement package, the employer hired a
replacement.8

_____________________________

ROCHELLE
S.
FRIEDMAN,
Judge

8 Moreover, the claimant previously had considered retirement to take care of her elderly
father, and, for that reason, considered the package a gift from God. Thus, this claimant did not
take the early retirement package because of her fear of imminent loss of employment.

RSF - 2 -