Hughes v. Commonwealth

414 A.2d 757, 51 Pa. Commw. 448, 1980 Pa. Commw. LEXIS 1459
CourtCommonwealth Court of Pennsylvania
DecidedMay 20, 1980
DocketAppeal, No. 937 C.D. 1979
StatusPublished
Cited by16 cases

This text of 414 A.2d 757 (Hughes v. Commonwealth) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hughes v. Commonwealth, 414 A.2d 757, 51 Pa. Commw. 448, 1980 Pa. Commw. LEXIS 1459 (Pa. Ct. App. 1980).

Opinion

Opinion by

Judge MacPhail,

Randolph S. Hughes, Jr. (Claimant) appeals to this Court from the decision of the Unemployment Compensation Board of Review (Board) which affirmed a dénial of unemployment compensation benefits to Claimant on the basis that he voluntarily left his employment without cause of a necessitous and compelling nature and, therefore, was ineligible for benefits pursuant to Section 402(b)(1) of the Unemployment Compensation Law, Act of December 5,1936, Second Ex. Sess., P.L. [1937] 2897, as amended, 43 P.S. §802(b)(l). Claimant raises two issues for our consideration: whether the Board erred in determining (1) that there was work available to him during the weeks ending October 8 and 15, 1977 and (2) that he voluntarily left his employment without cause of a necessitous and compelling nature.

In unemployment compensation cases, the claimant has the burden of proving eligibility for benefits. Spong v. Unemployment Compensation Board of Review, 44 Pa. Commonwealth Ct. 560, 563, 404 A.2d 444, 446 (1979); Veneski v. Unemployment Compensation Board of Review, 29 Pa. Commonwealth Ct. 154, 156, 370 A.2d 382, 384 (1977). Where, as here, the person with the burden of proof does not prevail before the Board, our scope of review is limited to determining whether the Board’s findings are consistent with each other and with the Board’s conclusions of law and its order, and whether they can be sustained without a capricious disregard of competent evidence. Baird v. Unemployment Compensation Board of Review, 30 [451]*451Pa. Commonwealth Ct. 118, 121, 372 A.2d 1254, 1257 (1977). If the Board makes findings of fact necessary to support its adjudication which are not supported by substantial evidence, we must set aside the Board’s order. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704, We find that the Board erred in determining that work was available to Claimant during the weeks ending October 8 and 15. Because there was no competent evidence on the record to indicate when work was and was not available to Claimant, we must reverse the order of the Board and remand this case for further proceedings concerning the availability of work issue.

Claimant was last employed as a cherry picker operator by Power Piping Company (Power) on September 1, 1977. He had worked for Power for nine days and it is undisputed that he could have worked at least one more day/ Claimant was a member of Local Union 542, International Union of Operating Engineers (Union) through which he had obtained his employment with Power. The Union kept a list of unemployed workers whom it referred for available job openings. Persons were ranked on the list by the length of time they had been unemployed. If a Union member on the list was sent to a job, worked ten days or more, and subsequently became unemployed, his or her name was placed at the bottom of the Union’s list and the member became available for another job assignment only when his or her name reached the top of the list. If the Union member worked fewer than ten days, however, his or her name stayed at the top of the list and the member was eligible immediately for another job placement. In September, 1977, when Claimant left employment with Power, the Union’s job list was seventeen pages long.

Claimant admits that he left his employment with Power on September 1, 1977. His reason for leaving [452]*452was Ms belief that Power would have had no work for him after September 2. It was to his advantage, he argued, to lose one day’s work and remain at the top of the Umon list rather than to work only one more day, be laid off, and go to the bottom of the list.

Subsequent to his leaving his job with Power, Claimant applied for unemployment compensation benefits begixming with the weeks ending October 8, 15, and 22. The Bureau (now Office) of Employment Security (Bureau) derned his application on the basis of Section 402(b)(1). Following two hearings, a referee affirmed the Bureau’s decision. Claimant appealed the referee’s decision to the Board which remanded for the taking of further testimony. Following two more hearings, the Board reversed the referee’s order in part and awarded benefits for all weeks except those ending on October 8 and 15,1977. Claimant has now appealed the Board’s decision concerning those two weeks to this Court.

Our review of the record discloses that the Board’s fourth finding of fact, that work with Power was available to Claimant until October 14, 1977, is not supported by substantial evidence. It is crucial to our determination to know how long work was available to Claimant. If, as Claimant contends, work would have been unavailable to him after September 2, whether or not he voluntarily left his employment without cause of a necessitous and compelling nature on September 1 would not change the fact that his unemployment during the weeks of October 8 and 15 would have been involuntary. See Labor and Industry Department v. Unemployment Compensation Board of Review, 133 Pa. Superior Ct. 518, 524-25, 3 A.2d 211, 215 (1938). Of course, if work was available to him during the weeks of October 8 and 15, whether he left his employment voluntarily without necessitous and compelling reason on September 1 is central to an [453]*453eligibility determination here. Because almost all of the evidence adduced during the four hearings1 in this case constituted hearsay, there is no competent evidence on the record to permit a determination of when work was or was not available.

Hearsay evidence is an out-of-court statement which is offered for the purpose of proving the truth of the matter asserted, Baird at 122, 372 A.2d at 1257, and findings of fact may not be based solely upon hearsay evidence, Eaton Corp. v. Unemployment Compensation Board of Review, 46 Pa. Commonwealth Ct. 589, 591, 406 A.2d 1220, 1221 (1979). Hearsay evidence admitted without objection will .be given its natural probative effect if it is corroborated by any competent evidence on the record. Hearsay evidence to which proper objections have been made is not competent evidence to support a finding of the Board. Bracy v. Unemployment Compensation Board of Review, 34 Pa. Commonwealth Ct. 173, 175, 382 A.2d 1295, 1297 (1978); Walker v. Unemployment Compensation Board of Review, 27 Pa. Commonwealth Ct. 522, 527, 367 A.2d 366, 370 (1976).

Power presented two witnesses — Edward Banaszak, an employer representative and John F. Mitchell, Power’s Payroll Supervisor — who testified that work was available to Claimant after September 2, 1977 and that the job itself (i.e. the repair of a glass farnace) lasted until October 14, 1977.

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Cite This Page — Counsel Stack

Bluebook (online)
414 A.2d 757, 51 Pa. Commw. 448, 1980 Pa. Commw. LEXIS 1459, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hughes-v-commonwealth-pacommwct-1980.