Opinion
Argued November 15, 1982
February 11, 1983.
Unemployment compensation — Voluntary termination — Cause of a necessitous and compelling nature — Burden of proof — Scope of appellate review — Error of law — Findings of fact — Substantial evidence — Credibility — Dangerous occupation — Inadequate staffing — Additional hearing — Notice of issues.
1. When an unemployment compensation claimant sustains its burden below in establishing a cause of a necessitous and compelling nature for her voluntary termination of employment, review by the Commonwealth Court of Pennsylvania is to determine whether an error of law was committed or necessary findings of fact were unsupported by substantial evidence. [42]
2. When substantial evidence supports a finding of the Unemployment Compensation Board of Review, the matter cannot be reversed because competent evidence to the contrary was also introduced, as the Board is the judge of credibility and must resolve evidentiary conflicts. [43]
3. An employe in an inherently dangerous job as a correctional officer who terminates employment because of an aggravation of the dangerousness because of inadequate staffing and excessive overtime may properly be found in an unemployment compensation proceeding to have terminated for a cause of a necessitous and compelling nature. [43]
4. The Unemployment Compensation Board of Review may in its discretion deny a party an additional hearing to present new evidence when notice to the party of the issues to be presented at the original hearing was adequate and no showing was made that the additional evidence could not with due diligence have been presented at that hearing. [43-4]
Argued November 15, 1982, before Judges BLATT, WILLIAMS, JR. and CRAIG, sitting as a panel of three.
Appeal, No. 758 C.D. 1981, from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Karen L. Booker, No. B-193462.
Application with the Office of Employment Security for unemployment compensation benefits. Benefits denied. Applicant appealed. Benefits awarded by referee. Employer appealed to the Unemployment Compensation Board of Review. Award affirmed. Employer appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Michael T. Ehling, Assistant County Solicitor, for petitioner.
John Kupchinsky, Associate Counsel, with him James K. Bradley, Associate Counsel, and Richard L. Cole, Jr., Chief Counsel, for respondent.
The Delaware County Prison (employer) appeals an order of the Unemployment Compensation Board (Board) which awarded Karen L. Booker (claimant) benefits because she had voluntarily terminated her employment for cause of a necessitous and compelling reason under 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)(1).
The facts, as found by the Board, indicate that the claimant was employed as a correctional officer and had voluntarily left her employment because of hazardous working conditions caused by the lack of an adequate number of qualified prison personnel. Specifically, it was determined by the Board that the claimant had been left alone on several occasions to oversee a large number of inmates — some not in cells — and that such a duty normally required two or three correctional officers. Additionally, although forced overtime for all personnel seems to have been the employer's policy, she was required to work considerably more hours than her fellow employees. The claimant discussed these problems with her employer, and was promised relief which never materialized. The Board further determined that the claimant nevertheless attempted to perform her duties under the aforementioned conditions before she quit and that she had been willing to remain employed if the conditions had been corrected as promised.
An employee who voluntarily terminates his or her employment bears the burden of establishing that such action was for cause of a necessitous and compelling reason under Section 402(b) of the Law. Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 378 A.2d 829 (1977). And where, as here, the party with the burden of proof has prevailed below, our scope of review in such unemployment compensation cases is limited to a determination of whether or not the Board committed an error of law or any necessary factual finding was unsupported by substantial evidence in the record, leaving determinations of credibility and evidentiary weight to the Board. Krieger v. Unemployment Compensation Board of Review, 52 Pa. Commw. 103, 415 A.2d 160 (1980).
The employer argues first that the claimant failed to sustain her burden before the Board. After carefully reviewing the record in this matter, however, we believe that substantial evidence exists in the record to support the Board's findings. The mere fact that there may have been evidence presented to the contrary does not defeat this conclusion, for the Board, as we have stated, determines credibility and evidentiary weight. The employer concedes in its brief that the position of correctional officer is by nature inherently dangerous. Given this, and accepting, as we must, the Board's findings that the claimant's inherently dangerous job was further aggravated by inadequate staffing and an amount of overtime considerably greater than that of her fellow employees, we believe that the Board did not err in concluding that she had established cause of a necessitous and compelling nature under Section 402(b) of the Law, for voluntarily terminating her employment. Taylor (circumstances which produce pressure must be real and substantial to compel a reasonable person to act similarly); Boogay v. Unemployment Compensation Board of Review, 46 Pa. Commw. 51, 405 A.2d 1112 (1979) (person in physical peril need not wait until actually assaulted).
The employer argues next that the Board abused its discretion in refusing to remand the matter for the taking of additional testimony or, in the alternative, to hear additional testimony itself. Specifically, the employer alleges that a remand or the taking of additional testimony by the Board should have occurred because it did not receive sufficient notice of the claims that would be made by the claimant at the hearing and could not have been expected, therefore, to bring numerous witnesses to the hearing in anticipation of countering every claim that she might conceivably make. We have, of course, previously recognized that it is not an abuse of discretion for the Board to refuse to grant an additional hearing to a party where there was no showing that any evidence will be presented which was not available, with due diligence, at the time the matter was initially before the referee. Pastorius v. Unemployment Compensation Board of Review, 50 Pa. Commw. 50, 411 A.2d 1301 (1980). And, in the case at hand, the "Notice of Hearing on Original Appeal" received by the employer stated as follows:
The claimant's summary of interview dated October 22, 1982, stated that she resigned because: "Hours too tedious, hazardous working conditions."
LIST OF ISSUES ARISING IN APPEALS PROCEEDINGS BEFORE THE PENNSYLVANIA UNEMPLOYMENT COMPENSATION BOARD OF REVIEW
All parties should be aware that in all cases involving the claimant's separation from employment, Section 402(b) . . . may be at issue. (Emphasis in original.)
We believe, therefore, that this notice (explicitly referring to Section 402(b)) gave the employer sufficient notice of the issues which might arise at the hearing on the claimant's voluntary termination.
We will, therefore, affirm the order of the Board.
ORDER
AND, NOW, this 11th day of February, 1983, the order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby affirmed.