Walsh v. Commonwealth, Unemployment Compensation Board of Review

329 A.2d 523, 16 Pa. Commw. 155, 1974 Pa. Commw. LEXIS 607
CourtCommonwealth Court of Pennsylvania
DecidedDecember 16, 1974
DocketAppeal, No. 1555 C.D. 1973
StatusPublished
Cited by10 cases

This text of 329 A.2d 523 (Walsh v. Commonwealth, 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
Walsh v. Commonwealth, Unemployment Compensation Board of Review, 329 A.2d 523, 16 Pa. Commw. 155, 1974 Pa. Commw. LEXIS 607 (Pa. Ct. App. 1974).

Opinion

Opinion by

Judge Rogers,

Eleanor E. Walsh here appeals from an order of the Unemployment Compensation Board of Review affirm[157]*157ing a referee’s decision denying her unemployment compensation benefits.

Ms. Walsh was employed on a part-time basis by the J. B. Smith Company as a clerical worker from January 1967 until November 1971, when she took employment elsewhere. Ms. Walsh was reemployed by J. B. Smith in October 1972 and worked for that company until June 15, 1973, when she voluntarily quit.

The substantive issue is whether Ms. Walsh left her work without cause of a necessitous and compelling nature. 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) (1); and Ms. Walsh bore the burden of showing that her voluntary quit was with such cause. Stale v. Unemployment Compensation Board of Review, 13 Pa. Commonwealth Ct. 131, 318 A. 2d 398 (1974). She asserted two reasons for leaving: first, that her employer violated an agreement made at the time of her rehiring that she should be paid on a salary rather than a wage basis, and second, that the odor of paint at her work station in the employer’s offices adversely affected her health.

The facts were sharply in dispute. Ms. Walsh testified that when she was reemployed she was promised that she would first work for wages but go on salary upon the resignation of another employee, which was early expected, and that when that event occurred her employer failed to keep its promise. The employer’s alleged violation of the asserted agreement, she stated, came to her attention when her weekly paycheck reflected a reduction as the result of her failure to work several days, with excuse for her absences. The employer’s representatives denied that there was an agreement that Ms. Walsh, when hired, would be paid on an hourly wage basis or that it would change the method of payment at any later time.

[158]*158Concerning the smell of paint in the offices, the employer’s representatives, while conceding that Ms. Walsh complained of this condition, as she testified, countered that such complaints were voiced only before it installed two electric air purifiers in January of 1978. The record is quite clear that Ms. Walsh did not tell her employer that her physician, who was treating her for diabetes, had advised her that the odor of paint was deleterious to her health, and not until the occasion of the Bureau of Employment Security’s predetermination hearing, which took place about a month after Ms. Walsh’s quitting her job, did she produce a doctor’s certificate. This certificate, dated July 14, 1973, reads: “E. Walsh is under my care — she is diabetic on [symbol for drug undecipherable] the odor of paint produces nausea according to the patient and this is undesirable from the medical standpoint for diabetic patients.”

The referee found the facts,, against the claimant. As to the alleged method of compensation, he stated that “this [the claimant’s version] condition of employment was not proved to the satisfaction of the referee,” and as to the odors, he emphasized the fact that the claimant failed to provide her employer with a physician’s statement that this condition was injurious to her health. There was no evidence other than the doctor’s certificate dated and produced after the claimant quit and based on her statement to him that the claimant suffered nausea while working for J. B. Smith Company. The weight to be given such doctor’s certificate was clearly for the fact finders. A. M. Elshinnawy v. Unemployment Compensation Board of Review, 12 Pa. Commonwealth Ct. 597, 317 A. 2d 332 (1974).

Where, as here, the decision of the Board is against the party having the burden of proof, the question before us, absent an error of law or a showing of fraud, is whether the Board’s findings of fact are consistent with each other and with its conclusions of law and its [159]*159order, and can be sustained without a capricious disregard of competent evidence. Zysk v. Unemployment Compensation Board of Review, 12 Pa. Commonwealth Ct. 409, 316 A. 2d 663 (1974); Brown Unemployment Compensation Case, 194 Pa. Superior Ct. 76, 166 A. 2d 100 (1960). Capricious disregard is defined as a willful and deliberate disregard of competent testimony and relevant evidence which one of ordinary intelligence could not possibly have avoided in reaching the result. Aluminum Company of America v. Theis, 11 Pa. Commonwealth Ct. 587, 314 A. 2d 893 (1974). We find no evidence capriciously disregarded by the unemployment compensation authorities which induced their conclusion that the claimant’s resignation was based solely on her unwillingness to work for wages. This was not necessitous or compelling cause for leaving. Stale v. Unemployment Compensation Board of Review, supra.

The testimony before the referee appears to have been taken on tape and the word “inaudible” appears at a number of places on the transcription. The appellant contends that the Board of Review could not have and did not consider the entire record, as it asserts in its order affirming the referee. This, she argues, requires us to reverse or reverse and remand for further hearing.

It is significant to note that, although both the appellant and her present counsel attended the referee’s hearing, they do not vouchsafe to tell us what evidence helpful to Ms. Walsh’s cause was omitted from the record. More importantly, we believe that the appellant raised the alleged inadequacy of the transcript too late in these proceedings.

A disappointed litigant before the Board may file a petition for rehearing or reconsideration with the effect that the limitation of time for appeal from the original adjudication, as well as the decision on the petition for rehearing, is measured from the entry of the latter de[160]*160cision, “if such a petition is timely filed.” Section 41 of the Administrative Agency Law, Act of June 4, 1945, P. L. 1388, as amended, 71 P.S. §1710.41.1 Rule 101.111 (a), 34 Pa. Code §101.111 of the Unemployment Compensation Board of Review implements this statutory right as follows:

“§101.111. Reconsideration by Board.
“(a) Within ten days after the issuance of the decision of the Board, as may be determined by the provisions of §101.102 of this Title (relating to form and filing of application for further appeal from decision of referee), any aggrieved party may request the Board to reconsider its decision and if allowed, to grant further the opportunity to do the following:
“(1) Offer additional evidence at another hearing. “(2) Submit written or oral argument.
“ (3) Request the Board to reconsider the previously established record of evidence.”

We note further concerning the availability to the appellant of the assertedly defective transcript of the hearing in this case, conducted on September 11, 1973, that it was received by the Board on October 5, 1973 and that the Board’s order affirming the referee is dated November 1, 1973. Board rules §§101.54 and 101.71 provide the following concerning, respectively, records and copies on request:

“§101.54. Records.
[161]

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Bluebook (online)
329 A.2d 523, 16 Pa. Commw. 155, 1974 Pa. Commw. LEXIS 607, Counsel Stack Legal Research, https://law.counselstack.com/opinion/walsh-v-commonwealth-unemployment-compensation-board-of-review-pacommwct-1974.