Opinion
Argued January 11, 1974
January 30, 1974.
Unemployment compensation — Voluntary termination of employment — Cause of necessitous and compelling nature — Unemployment Compensation Law, Act 1936, December 5, P. L. (1937) 2897 — Scope of appellate review — Findings of fact — Sufficient evidence.
1. One leaving his employment voluntarily without cause of a necessitous and compelling nature is not entitled to benefits under tile Unemployment Compensation Law, Act 1936, December 5, P. L. (1937) 2897. [539-40]
2. The Unemployment Compensation Law, Act 1936, December 5, P. L. (1937) 2897, provides that, in the absence of fraud, findings of fact of the referee or the Unemployment Compensation Board of Review are conclusive if supported by competent evidence. [540-1]
Argued January 11, 1974, before Judges KRAMER, WILKINSON, JR. and ROGERS, sitting as a panel of three.
Appeal, No. 859 C.D. 1973, from the Order of the Unemployment Compensation Board of Review, in case of In Re: Claim of Joseph P. Arculin, No. B-117292.
Application to Bureau of Employment Security for unemployment compensation benefits. Application denied. Applicant appealed to the Unemployment Compensation Board of Review. Denial affirmed. Applicant appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Gerald E. Ruth, for appellant.
Sydney Reuben, Assistant Attorney General, with him Israel Packel, Attorney General, for appellee.
The issue in this unemployment compensation case is whether the unemployment of the appellant, Joseph Arculin, came about by action of his employer or was due to his "voluntarily leaving work without cause of a necessitous and compelling nature." If the latter, he is not entitled to compensation by Section 402(b)(1) of the Unemployment Compensation Law, Act of December 5, 1936, P. L. [1937] 2897, 43 P. S. § 802(b)(1).
Mr. Arculin, 62 years of age and now receiving Social Security retirement benefits, had worked for Murray Equipment Co. as a production worker for about three months when his physicians advised that he undergo a hernia operation. His last day of work was August 7, 1972. He was operated upon the following day. On October 18, 1972 he departed on a European holiday which he had planned before going to work for Murray. On November 11, 1972, by telephone, Mr. Arculin advised Murray of his availability for resumed employment and was told that there was then no position for him.
The testimony of the claimant and his employer concerning the conversation between them on the occasion of the claimant's leaving is conflicting. Mr. Arculin testified that he told his employer that he would return after an indefinite period of recuperation. The employer testified that he asked the claimant if the latter would return to work and received a negative answer. This simple issue of fact was resolved by the referee and the Board of Review against the claimant and compensation was denied.
Section 510 of the Unemployment Compensation Law, 43 P. S. § 830, provides that "the findings of the board, or the referee, as the case may be, as to the facts, if supported by competent evidence and in the absence of fraud, shall be conclusive. . . ." The referee's finding, adopted by the Board, that the claimant quit his employment as an exercise of personal preference was fully supported by the employer's testimony. Its acceptance as the foundation for a finding was solely for the compensation authorities. Philadelphia Coke Division, Eastern Associated Coal Corporation v. Unemployment Compensation Board, 6 Pa. Commw. 37, 293 A.2d 129 (1972).
Order affirmed.