Opinion
Argued March 14, 1980
May 5, 1980.
Unemployment compensation — Voluntary termination — Cause of a necessitous and compelling nature — Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897 — Chance of being fired — Credibility — Due process.
1. An employe voluntarily terminating employment without a cause of a necessitous and compelling nature is ineligible for benefits under the Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897, and an employe who left work early and failed to report to work the following day is properly denied such benefits when he quits his job because he feels he is likely to be fired. [138]
2. The fact finder in an unemployment compensation case does not capriciously disregard evidence by failing to accept as credible a speculative opinion by a claimant that no work was available to him. [138-9]
3. Due process principles require that an unemployment compensation claimant be provided a fair and impartial hearing but do not require a referee to advise him on particular evidentiary matters or specific points of law. [139]
Argued March 14, 1980, before Judges WILKINSON, JR., BLATT and MacPHAIL, sitting as a panel of three.
Appeal, No. 2310 C.D. 1978, from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of James De Meno, No. B-159913.
Application with the 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.
Carol S. Mills McCarthy, for appellant.
John T. Kupchinsky, Assistant Attorney General, with him Richard Wagner, Chief Counsel and Edward G. Biester, Jr., Attorney General, for respondent.
James DeMeno (claimant) appeals here from an order of the Unemployment Compensation Board of Review (Board) which affirmed a referee's decision denying him benefits under 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), for voluntarily terminating his employment without cause of a necessitous and compelling nature. He argues that (1) he did not voluntarily terminate his employment, (2) that the Board's findings were made in capricious disregard of the evidence, and (3) that the referee's conduct at the hearing deprived him of due process.
The claimant admitted at the hearing that, after leaving work early one day and not reporting the next, he called his employer and said he was quitting. He argues nevertheless that his termination was not voluntary because, had he not quit, the employer would have discharged him. This assertion is supported, however, only by his testimony that he received a previous warning to "make no more mistakes." We cannot agree, therefore, that the claimant was forced to terminate his employment. He was not given a direct ultimatum as was the claimant in Thomas v. Unemployment Compensation Board of Review, 14 Pa. Commw. 398, 322 A.2d 423 (1974), and it does not appear that he resigned in the face of certain discharge. "Th[is] case falls rather within that line of cases which hold[s] that one who quits his work merely to avoid the chance of being fired is not entitled to compensation." Hill v. Unemployment Compensation Board of Review, 35 Pa. Commw. 252, 255, 385 A.2d 1032, 1033 (1978).
The claimant also challenges the Board's finding that continuing work was available to him. We do not agree, however, that the Board was compelled to accept his speculative opinion that he could not have returned to work. We must conclude, therefore, that the Board did not capriciously disregard evidence.
Finally, we believe that the claimant's attack on the referee's conduct is without merit. Our reading of the record indicates that the referee acted in a fair and impartial manner. Moreover, due process does not require, as the claimant contends, that a referee advise a claimant on particular evidentiary matters or specific points of law. Horvath v. Unemployment Compensation Board of Review, 44 Pa. Commw. 420, 403 A.2d 1073 (1979); Simpson v. Unemployment Compensation Board of Review, 39 Pa. Commw. 246, 395 A.2d 309 (1978).
We shall therefore affirm the order of the Board.
ORDER
AND NOW, this 5th day of May, 1980, the order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby affirmed.