Opinion

Carter v. Unemployment Compensation Board of Review

  • 157 Pa. Commw. 133
  • 629 A.2d 212
  • 1993 Pa. Commw. LEXIS 429
Court
Commonwealth Court of Pennsylvania
Filed
Jul 14, 1993
Status
Published
Author
Lord
On the bench
Smith, Kelley, Lord
Cited by
6 cases
Authority
More cited than 78.5%

The opinion

LORD, Senior Judge.

John A. Carter, M.D. (Employer) petitions for review of the June 5, 1992 orders of the Unemployment Compensation Board of Review (Board) which reversed the referee’s orders denying benefits to Barbara Policiehio and Bristol Good (Claimants) pursuant to Section 402(b) of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b). One issue presented is whether the record contains substantial evidence to support the finding that Claimants voluntarily left their employment for necessitous and compelling reasons. 1

*136 Policichio was employed as an office nurse and Good as an office assistant until their last work day on May 10,1991 when they quit subsequent to a dispute with Employer concerning charges of employee inefficiency. Claimants filed applications for benefits on May 23, 1991 alleging they quit their jobs because Employer paid them late and owed them back pay. The Bureau of Unemployment Compensation Benefits and Allowances (Bureau) denied their claims, and Claimants appealed. A hearing was held on June 17, 1991 at which Claimants testified and Employer presented the testimony of his stepdaughter hired as office manager in May 1991 before Claimants quit.

Claimants testified that Employer owed them back pay from January 1990 when Employer changed Claimant’s original pay schedule and that they confronted Employer in April 1990 and February 1991 concerning this matter. Claimants testified they did not inform Employer that they were quitting due to pay matters because, according to them, it was understood on the basis of prior confrontations, and the Employer informed them for the first time on May 10, 1991 of their inefficiency. Employer’s stepdaughter testified that she performed needed inventory-related duties and that she was paid timely. The referee affirmed the Bureau, concluding that, although Claimants had a legitimate claim for back pay, they quit because of their resentment toward Employer’s suggestion that their performance was unsatisfactory. Findings of Fact Nos. 4 and 5. Claimants appealed to the Board which found that Employer’s paycheck disbursements had deviated from the original payment schedule and became late and sporadic from October 1989 until Claimants’ last day; Employer owed Claimants funds for the final pay period ending May 3, 1991 and the back pay from January 1990; and Claimants left their jobs due to Employer’s late wage payments. The Board concluded that Claimants voluntarily terminated their employment due to Employer’s charges of inef *137 fíciency and his untimely payment of wages, the latter of which provided a necessitous and compelling cause for voluntary termination pursuant to Section 402(b) of the Law. The Board reversed the referee.

Section 402(b) of the Law provides that a claimant whose unemployment is due to voluntary termination bears the burden of proving that such termination was for a necessitous and compelling reason. Quinn, Gent, Buseck and Leemhuis, Inc., v. Unemployment Compensation Board of Review, 147 Pa. Commonwealth Ct. 141 , 606 A.2d 1300 (1992). To meet that burden, a claimant must show that cause of a necessitous and compelling nature results from circumstances which produced real and substantial pressure to terminate one’s employment and which would compel a reasonable person under like circumstances to act in the same manner. Id. This Court has held that several instances of tardy wage payments resulting in employee protest and refusal by the employer to guarantee timely payment of wages as demanded by the employee can constitute necessitous and compelling cause for that termination. Emgee Engineering Co. v. Unemployment Compensation Board of Review, 30 Pa. Commonwealth Ct. 290 , 373 A.2d 779 (1977). The claimant must have requested the employer to guarantee adherence to a rigid payment schedule after protesting the tardy payments. Koman v. Unemployment Compensation Board of Review, 61 Pa. Commonwealth Ct. 604 , 435 A.2d 277 (1981). Further, a claimant must establish that he or she acted with ordinary common sense in quitting, made a reasonable effort to preserve his or her employment, and had no real choice other than to leave that employment. Malloy v. Unemployment Compensation Board of Review, 105 Pa. Commonwealth Ct. 183 , 523 A.2d 834 (1987).

Employer contends that the record does not contain substantial evidence to support the Board’s decision because Claimants did not testify specifically that late payment of wages caused them to leave but did testify, however, that they left due to their resentment toward Employer for his charges of inefficiency, and moreover, Claimants worked for seventeen *138 months under the new payment schedule. Employer further contends that the Board erred as a matter of law by finding that Claimants quit because of Employer’s late wage payments without providing an explanation for disregarding the referee’s findings to the contrary.

We have examined the record and find that, although there was ample evidence to support the employer’s contention that claimants quit because they were charged with inefficiency, there was also substantial evidence that supported the Board’s finding that Claimants quit because of the tardy pay practice. Exhibit six, which was made part of the record without objection, is comprised of two OES Summary of Interview Forms, each completed by a claimant. In it, in response to the question, “Why did you leave your job? Explain” each claimant offered, “1) owed back wages 2) cut hrs----3) hired step daughter ... 4) told us ... office was not run efficiently”---- In this exhibit, an OES local office representative explains “[claimant] states Dr. owes 142 hrs. back wages ... [claimant] states employer was behind in pay----” We find this evidence, coupled with the claimants’ testimony that employer was late in payment and owed back wages, (N.T., Referee hearing, 6/17/91, pp. 30-33) supports the Board’s finding on the reason why the claimants quit. Under these circumstances, we cannot reverse the decision of the Board.

We therefore turn to the employer’s second contention that the Board committed error when it overturned the referee’s decision without giving any explanation for disregarding the referee’s finding of fact. We see no reason to reverse the Board or, for that matter, to remand on these grounds.

In M.A. Bruder and Sons, Inc. v. Unemployment Compensation Board of Review, 145 Pa. Commonwealth Ct. 329 , 603 A.2d 271 (1992), a case in which the Board gave no reasons for overturning the referee’s credibility finding, this court reviewed Treon v. Unemployment Compensation Board of Review, 499 Pa. 455 , 453 A.2d 960 (1982), Peak v. Unemployment Compensation Board of Review, 509 Pa. 267 , 501 A.2d 1383 *139 (1985), Spencer v. Unemployment Compensation Board of Review, — Pa. Commonwealth Ct.-, 501 A.2d 1159 (1985) (Spencer I) and Spencer on reconsideration, 93 Pa. Commonwealth Ct. 270 , 504 A.2d 991 (1986) (Spencer II) and held:

Thus, where there is conflicting evidence, the Board is free to reject the findings of the referee where it believes one side or the other, and our review is limited to a determination of whether the decision is in violation of constitutional rights, or is not supported by substantial evidence.

Id. 145 Pa.Cmwlth. at 335-336 , 603 A.2d at 275 .

We also pointed out in Bruder how this Court, based on Treon , attempted in Spencer I, where there was conflicting evidence, to require the Board to indicate its reasons for overturning the referee’s credibility finding. However, in Bruder and Spencer II, we proceeded to explain how our Supreme Court in Peak implicitly rejected that suggestion when there was conflicting evidence. 2

We conclude therefore that the holding in Treon which requires reasons by the Board for overturning the findings of a referee is limited to those cases which present the “capricious disregard of evidence” standard of review. This is not the situation present in this case, where there was evidence by both sides. Kirkwood.

We also stated in Bruder that the Supreme Court in Peak held a simple statement by the Board that “it chose to believe the employer not the employee” was plain enough reason to allow an adequate appellant review.

*140 Here, an explicit statement on credibility is not present, but it is clear that the only basis for the Board’s decision is that it decided to believe the claimants’ reason for leaving. When faced with conflicting testimony on the reasons why the claimants quit, the Board found as a fact that the “employer did not pay the claimant[s] on time and continued to owe [them] backpay.” It also made an express factual finding that the claimants left their job due to “continued late payments and refusals to pay backpay.”

In Bruder, 145 Pa. Commonwealth Ct. at 336 , 603 A.2d at 275 , the Court also said:

As we have pointed out, this court is to determine whether there is substantial evidence and not to decide whether there has been an abuse of discretion by the Board on issues of credibility.

We adhere to that statement and, having determined that there is substantial evidence to support the Board’s findings, which in turn leads to a conclusion that the claimants had a compelling reason for leaving their jobs, we affirm the decision of the Board.

ORDER

AND NOW, this 14th day of July, 1993, the orders of the Unemployment Compensation Board of Review at Nos. B-299673 and B-299674, dated June 5,1992, are hereby affirmed.

. This Court’s scope of review of the Board’s order is limited to determining whether necessary findings of fact are supported by sub *136 stantial evidence, whether an error of law was committed, or whether constitutional rights were violated. Kirkwood v. Unemployment Compensation Board of Review, 106 Pa. Commonwealth Ct. 92 , 525 A.2d 841 (1987).

. In our opinion in Spencer I,- Pa. Commonwealth Ct. at-, 501 A.2d at 1163 , this Court said:

We hold, therefore, that when a referee has discredited testimonial evidence, either expressly or by implication, the Board must indicate its reasons for over turning the referee’s finding on credibility. The Board must, in its decision, point to documentary or other testimonial evidence which supports the testimony discredited by the referee, or to specific inconsistencies within the testimony accepted by the referee which would justify rejecting the referee’s findings.

We of course would prefer an effort by the Board to comply with the suggestions made in the language quoted above. It would certainly make our appellate review easier.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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