concluding that an improper finding of fact that does not affect the outcome of the case constitutes harmless error
How later courts described this case
- concluding that an improper finding of fact that does not affect the outcome of the case constitutes harmless error
- fear about future employment was speculative
Written by the judges who cited it.
The opinion
DISSENTING OPINION BY
Judge FRIEDMAN.
I respectfully dissent. The majority properly states that, under section 402(b) of the Unemployment Compensation Law, 1 an employee has the burden of proving that his or her unemployment was caused by necessitous and compelling circumstances, i.e., circumstances which produced real and substantial pressure to terminate his or her employment and which would compel a reasonable person to act in the same manner. (Majority op. at 3) (citing McCarthy v. Unemployment Compensation Board of Review, 829 A.2d 1266 (Pa.Cmwlth.2003)). However, in my view, the employee meets this burden 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 unemployment law, one of the reasonable inferences that a fact-finder may draw is an adverse inference from a party’s silence. See Gancom v. Unemployment Compensation Board of Review, 163 Pa.Cmwlth. 423 , 641 A.2d 652 (1994). Likewise, where an employer offers an employee incentives to quit, with no word about the prospects of continued employment should the employee refuse the offer, *1124 it is reasonable for the employee to fear the imminent loss of his or her employment. 2 Using the legal test in McCarthy , an offer of incentives to terminate employment, combined with silence about the effect of a refusal, would produce real and substantial pressure on an employee to terminate employment and would compel a reasonable person to act in the same manner. 3 Therefore, under those circumstances, the employee would have cause of a necessitous and compelling nature for terminating employment and would be entitled to benefits.
. Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b).
. Indeed, if an employer does not want to lose a particular employee, the employer would not try to entice the employee with incentives to quit. Moreover, where the incentives offered are nearly irresistible, the situation is analogous to offering candy to a baby.
. I note that the employer in such a case cannot argue that the receipt of unemployment benefits in addition to the monetary incentives would be double dipping. See Georgia-Pacific Corporation v. Unemployment Compensation Board of Review, 157 Pa. Cmwlth. 651, 630 A.2d 948 (1993) (making a *1125 distinction between unemployment benefits and other statutory payments).