Opinion
Argued March 11, 1977
April 7, 1977.
Unemployment compensation — New hearing — Unusable recording of proceedings — Discretion of Unemployment Compensation Board of Review — Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897 — Findings of fact — Sufficient evidence — Conflicting evidence — Credibility.
1. Under the Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897, it is within the discretionary authority of the Unemployment Compensation Board of Review to remand a case to a second referee to hear testimony and complete a record so that the decision of the original referee can be properly reviewed when the tape recording of the original proceeding was found to be unusable. [534-5]
2. A finding by unemployment compensation authorities that a claimant voluntarily terminated his employment will not be disturbed on appeal if supported by competent evidence, although conflicting testimony was also presented, as questions of credibility and the resolution of evidentiary conflicts is for the fact finder not the reviewing court. [535-6]
Argued March 11, 1977, before Judges CRUMLISH, JR., KRAMER and ROGERS, sitting as a panel of three.
Appeal, No. 1144 C.D. 1976, from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of John Carideo, No. B-132078.
Application to Bureau of Employment Security for unemployment compensation benefits. Application denied. Applicant appealed to the Unemployment Compensation Board of Review. New hearing held before referee. Denial affirmed by Board. Applicant appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Samuel B. Brenner, with him Brenner and Brenner, for appellant.
George O. Phillips, Assistant Attorney General, with him Robert P. Kane, Attorney General, for appellee.
John Carideo (Appellant) appeals a decision of the Unemployment Compensation Board of Review (Board) which had affirmed the referee who denied him benefits. Although Appellant contends that he was fired, the referee found that he had voluntarily quit his job. Because the tape recording of the hearing before the referee was found to be unusable, upon appeal, the Board remanded the case to another referee to complete a record for its review. The second referee made no findings but the testimony before him was used by the Board to affirm the original referee's decision.
Appellant questions the propriety of the Board's procedure in affirming the decision of the original referee based upon a record taken before a different referee, and further submits that the Board's decision was not based upon competent evidence. We must affirm the Board.
We find the procedure of the Board in this case to have been properly within its discretion. It is significant that Appellant makes no claim of actual prejudice because of this unusual procedure, since the initial hearing, in effect, provided him a rehearsal for the hearing from which the Board made its decision. Moreover, the Board has considerable latitude in the determination of its procedure. Section 203(d) of the Unemployment Compensation Law (Act), Act of December 5, 1936, Second Ex. Sess., P.L. (1937), as amended, 43 P. S. § 763 (d), allows the Board to "take such action required for the hearing and disposition of appeals as it deems necessary and consistent with this act." Section 504 of the Act, 43 P. S. § 824, allows the Board to "direct the taking of additional evidence" without any limitation as to the purpose for such evidence.
As to the contention that the Board's decision was not based on competent evidence, review of the testimony reveals that the claimant and a representative of the employer gave conflicting testimony concerning claimant's departure from his employment. It is well settled in unemployment compensation cases that "the finding of the board or referee, as the case may be, as to the facts, if supported by the evidence and in the absence of fraud, shall be conclusive." Thus, the determination of the credibility of witnesses and the resolution of conflicts in testimony are for the fact-finder, not the reviewing court. Mosley v. Unemployment Compensation Board of Review, 15 Pa. Commw. 447, 452, 327 A.2d 199, 201 (1974). Therefore, we must accept factual determinations of the fact-finder where, as here, they are supported by competent evidence.
Section 510 of the Act, 43 P. S. § 830.
Accordingly, we
ORDER
AND NOW, this 7th day of April, 1977, the decision of the Unemployment Compensation Board of Review is hereby affirmed.