Treon v. Unemployment Compensation Board of Review

453 A.2d 960, 499 Pa. 455, 1982 Pa. LEXIS 707
CourtSupreme Court of Pennsylvania
DecidedDecember 30, 1982
StatusPublished
Cited by83 cases

This text of 453 A.2d 960 (Treon v. Unemployment Compensation Board of Review) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Treon v. Unemployment Compensation Board of Review, 453 A.2d 960, 499 Pa. 455, 1982 Pa. LEXIS 707 (Pa. 1982).

Opinions

OPINION

LARSEN, Justice.

Appellant Greg Treon applied for unemployment compensation on October 15, 1978. The Bureau of Employment Security found that appellant had left his employment voluntarily without cause of a necessitous and compelling nature and denied benefits in accordance with § 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)(1) (Supp. Pamphlet). Thereafter, a hearing was held before a referee and the denial of benefits was upheld by both the referee and the Unemployment Compensation Board of Review. On appeal, the Commonwealth Court affirmed. Treon v. Commonwealth, Unemployment Compensation Board of Review, 54 Pa.Commw. 412, 421 A.2d 525 (1980). We granted allocatur and we now reverse.

Appellant first contends that the Commonwealth Court erred in affirming the Board’s findings of fact. We agree.

In this case, the hearing was conducted by the referee and appellant was the only witness. Appellant had no counsel, and no representative of Engineered Masonry was present. At the hearing, appellant testified that he was single and that he lived in Sunbury; that he had worked for Engineered Masonry as a bricklayer in Shamokin at the rate of $10.70 per hour from May, 1978 until he was laid off on October 10, 1978; that on October 10, 1978, Engineered Masonry offered appellant other work in Darby, south of Philadelphia; that appellant did not accept this offer because it would involve 336 miles — about seven to eight hours — of travel each day, at a cost of $105.00 to $125.00 per week, because the company did not offer to help with transportation, and because there was no guarantee of con[459]*459tinued work or good weather;1 that he had not worked since October 10, 1978 but that he remained available for work; that the farthest he had ever commuted to work was 55 miles each way; that the first time he worked for Engineered Masonry was on the construction job in Shamokin; that he did not know when he began working for Engineered Masonry that he might have to move when the construction in Shamokin was completed; that when he was offered the job in Darby, he told the foreman that he would have to think it over; that he did not know what happened to the other bricklayers who had been working with him in Shamokin; and that he never contacted Engineered Masonry after his last day of work on October 10, 1978.

Based upon appellant’s testimony, the referee found the following facts:

1. The claimant was last employed by Engineered Masonry as a bricklayer, at a salary of $10.70 per hour and was employed by this company for a period of approximately six months.
2. His last day of work was 10-10-78, when his job was completed and he was offered similar work in the Philadelphia area at the same rate of pay.
3. Claimant informed his employer he would think about it, and never contacted his employer after his last day of work.
4. Claimant alleges it was too far to travel and expenses would be too great, plus he was concerned that he might not work steady, due to anticipated weather conditions.

On appeal, the Board adopted the referee’s first three findings of fact. However, the Board did not adopt the fourth finding of fact, nor did it assert that this finding was either incredible or unsupported by the evidence. Appellant now challenges the Board’s failure to adopt the referee’s fourth finding.

[460]*460It is now axiomatic in an unemployment compensation case, that the findings of fact made by the Board, or by the referee as the case may be, are conclusive on appeal so long as the record, taken as a whole, contains substantial evidence to support those findings.

Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 355, 378 A.2d 829, 821 (1977).

In this case, however, we are presented with a different situation: we are concerned not with findings made by the Board, but with findings made by the referee which the Board failed to adopt.

With regard to findings made initially by the Board, we have held that

[although the weight to be given the evidence and the credibility to be afforded the witnesses are within the province of the Board as finder of fact, . .. such a body is not free to ignore the overwhelming evidence in favor of a contrary result not supported by the evidence.

Borello v. Commonwealth, Unemployment Compensation Board of Review, 490 Pa. 607, 618-19, 417 A.2d 205, 211 (1980) (emphasis added; citations omitted). Similarly, we are of the opinion that the Board may not ignore the referee’s findings when they are supported by overwhelming evidence.

In this case, the Board heard no additional testimony before it rendered its decision. See 43 P.S. § 824. Thus, it had before it precisely the same record which we now have before us: copies of the Bureau of Employment Security forms filed by appellant and Engineered Masonry, and a copy of appellant’s testimony before the referee. That record contains the consistent and uncontradicted testimony of one witness, appellant. The Board certainly had the right to disbelieve appellant’s testimony, even though that testimony was uncontradicted. See Rodrigques v. Commonwealth, Unemployment Compensation Board of Review, 58 Pa.Commw. 362, 427 A.2d 1255, 1256 (1981); Daley v. Com[461]*461monwealth, Unemployment Compensation Board of Review, 57 Pa.Commw. 629, 631 n. 3, 426 A.2d 1299, 1300 n. 3 (1981). Nevertheless, the Board did not have the right to arbitrarily and capriciously disregard the findings of the referee after the referee had listened to the testimony of the only witness and observed his demeanor, and had made findings ' of fact based upon that uncontradicted testimony. Compare Davis v. Commonwealth, Unemployment Compensation Board of Review, 57 Pa.Commw. 499, 501, 426 A.2d 753, 755 (1981) (where the Board’s finding was against the claimant, “the question is whether the finding was the result of capricious disregard of competent evidence”).

If particular findings are inconsistent, incredible or unsupported by the evidence, then the Board must so indicate. The Board may not, however, simply disregard findings made by the referee which are based upon consistent and uncontradicted testimony without stating its reasons for doing so.

Accordingly, we hold that it was error for the Commonwealth Court to affirm the Board’s findings of fact and we reinstate the fourth finding made by the referee.2

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Bluebook (online)
453 A.2d 960, 499 Pa. 455, 1982 Pa. LEXIS 707, Counsel Stack Legal Research, https://law.counselstack.com/opinion/treon-v-unemployment-compensation-board-of-review-pa-1982.