Van Duser v. Unemployment Compensation Board of Review

642 A.2d 544, 164 Pa. Commw. 96, 1994 Pa. Commw. LEXIS 234
CourtCommonwealth Court of Pennsylvania
DecidedMay 13, 1994
Docket2415 C.D. 1993
StatusPublished
Cited by47 cases

This text of 642 A.2d 544 (Van Duser v. Unemployment Compensation Board of Review) 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
Van Duser v. Unemployment Compensation Board of Review, 642 A.2d 544, 164 Pa. Commw. 96, 1994 Pa. Commw. LEXIS 234 (Pa. Ct. App. 1994).

Opinions

NARICK, Senior Judge.

Majken Van Duser (Claimant) appeals from the order of the Unemployment Compensation Board of Review (UCBR) that affirmed the referee’s denial of benefits and the assessment of a fault overpayment subject to repayment. We affirm.

Following Claimant’s layoff in August 1992, she contracted with Norelle Temporary Services (Employer) for placement as a secretary. Employer immediately placed Claimant with Sterling Winthrop (Sterling), as a secretary. After working three weeks, Sterling requested Claimant to begin packing materials in her office because Sterling was moving its office to another location. Claimant immediately contacted Employer stating that she did not “feel that [packing and moving boxes] was secretarial work.” Notes of Testimony (N.T.) of June 14, 1993 Hearing at 9. Claimant told Employer that she would “stay until the end of the week and ... would be available for other work, but ... would like to leave the assignment at the end of the week.” Id. Claimant’s last day of work was September 25, 1992. Employer did not find a subsequent assignment for Claimant and on October 2, 1992, Claimant filed for unemployment compensation benefits, effective September 27, 1992, stating that she was unemployed “due to lack of work.” (N.T. at 10). The job center granted Claimant benefits which Employer appealed.1

[101]*101Before the referee, there were two separate appeals at 93-Ol-E-396, concerning the termination, and 93-01-E-397, concerning the fault overpayment.

Only Claimant testified concerning the basis for her termination. Claimant introduced the record of payments made for chiropractic treatments over the past ten years. Claimant asserted that in the past she suffered a strained back. Claimant also testified she saw her chiropractor on September 16, 1992. (N.T. at 7). Claimant testified that she did not advise Employer of her back condition before taking the job with Sterling because she had never had to lift heavy boxes as a secretary, previously. Claimant also testified that at the time she left Sterling she still did not tell Employer of her medical problem. (N.T. at 11).

On the assessment of fault overpayment, Claimant and Mr. Shoemaker, an unemployment compensation examiner, testified. Claimant testified that the reason she marked “lack of work” on the unemployment compensation form was because Employer did not find her a subsequent position. Mr. Shoemaker testified to the job center’s assessment of a fault overpayment.

In his first opinion at 93-01-E-396, the referee made the following pertinent findings of fact:

2. While on indefinite assignment with Sterling Winthrop, the claimant was required to pack and move boxes of materials because the office was moving.
3. From September 16, 1992, the claimant had been undergoing treatment with a chiropractor for her back problems.
[102]*1024. On September 25, 1992, the claimant voluntarily terminated the employment because she was dissatisfied with the job.
5. The claimant did not discuss her back problems with the employer.
íft íjí ifi
7. The claimant reported to the local office that she was unemployed due to lack of work.
8. The claimant reported that she was off for lack of work because, although she had left the assignment at Sterling Winthrop, she reported to [employer] that she was available for other assignment and had not been offered another assignment.
9. The claimant received $6,975.00 in unemployment compensation benefits for the claim weeks ending October 3, 1992 through March 27, 1993, by reason of her fault because she provided misleading information to the local Office of Employment Security, which caused them to pay benefits.
10. The claimant did not knowingly provide false information in order to obtain benefits to which she knew she was not entitled.

(Citations omitted). In this opinion, the referee determined that Claimant had not met her burden of showing cause of a necessitous and compelling nature for terminating her employment under Section 402(b) of the Law, 43 P.S. § 802(b).2

In the separate opinion at 93-01-E-397, while finding Claimant received compensation by reason of her fault because she provided misleading information to the job center, the referee determined that because Claimant believed she was eligible for benefits no penalty would be imposed. Claimant appealed both decisions to the UCBR. The UCBR affirmed, filing two separate orders.

[103]*103Claimant then filed a single appeal from these orders, arguing that two of the referee’s findings of fact are inaccurate and that the UCBR erred as a matter of law in affirming the referee’s conclusion that Claimant had failed to meet her burden of showing cause of a necessitous and compelling reason for terminating her employment.3

Before we advance upon the substantive issues, we must address two procedural concerns. First, Claimant filed only one appeal from the two orders filed by the UCBR. Pa.R.A.P. 512 is entitled Joint Appeals.4 The commentary to Rule 512, in Darlington, McKeon, Schuckers & Brown, Pennsylvania Appellate Procedure, states that joint appeals from one order are encouraged. However, one appeal from several orders are discouraged. Id.

The Supreme Court in General Electric Credit Corp. v. Aetna Casualty & Surety Co., expressly discouraged the taking of one appeal from several orders:

Taking one appeal from several judgments is not acceptable practice and is discouraged. It has been held that a single appeal is incapable of bringing on for review more than one final order, judgment or decree. When circumstances have permitted, however, we have refrained from quashing the whole appeal, but this Court has quashed such appeals where no meaningful choice could be made. [104]*104437 Pa. 463, 469-70, 263 A.2d 448, 452-53 (1970) (Citations and footnotes omitted).

Id. Cumulative Supp. at 140-41. While Pennsylvania courts have disapproved the taking of one appeal from multiple orders, the courts have been reluctant to quash.5 Because Employer has not complained about the filing of a single appeal and because the referee conducted only one hearing, we will follow this Court’s practice of not quashing the appeal, although again noting our disapproval of the procedure of filing one appeal from more than one order.

We must also determine which standard of review should be invoked here. At the single hearing before the referee, Claimant was the only party to testify regarding the reason for her separation from employment. Because Claimant quit her employment, her separation is treated under Section 402(b) of the Law and she bears the burden of proving necessitous and compelling cause for her decision to quit. Credden v. Unemployment Compensation Board of Review, 72 Pa.Commonwealth Ct. 586,

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Bluebook (online)
642 A.2d 544, 164 Pa. Commw. 96, 1994 Pa. Commw. LEXIS 234, Counsel Stack Legal Research, https://law.counselstack.com/opinion/van-duser-v-unemployment-compensation-board-of-review-pacommwct-1994.