Opinion
Argued March 5, 1979
June 19, 1979.
Unemployment compensation — Hearsay — Voluntary termination — Cause of a necessitous and compelling nature — Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897 — Hearing — Assistance by referee — Due process.
1. Findings in an unemployment compensation case cannot be based upon hearsay alone, but hearsay admitted without objection can support a finding if corroborated by competent evidence in the record. [400-1]
2. An employe, who is warned that he would possibly be discharged if his performance did not improve and who quits rather than face the possible discharge, is properly found to have voluntarily terminated employment without a cause of a necessitous and compelling nature and to be ineligible for benefits under the Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897. [401]
3. Due process is not denied an unemployment compensation applicant because the referee conducting the hearing does not provide affirmative assistance to the applicant and advise him when to make evidentiary objections. [401-2]
Argued March 5, 1979, before Judges CRUMLISH, JR., ROGERS and MacPHAIL, sitting as a panel of three.
Appeal, No. 1861 C.D. 1977, from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Leonard J. Mendelson, No. B-148116.
Application to 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.
Antonio D. Pyle, for petitioner.
John T. Kupchinsky, Assistant Attorney General, with him Elsa D. Newman, Assistant Attorney General, and J. Justin Blewitt, Acting Attorney General, for respondent.
Leonard J. Mendelson was declared ineligible for unemployment compensation benefits by a referee of the Unemployment Compensation Board of Review (Board) for having voluntarily left work without cause of a necessitous and compelling nature, section 402(b)(1) 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). His appeal to the Board was denied.
We affirm the Board.
Mendelson was employed for nine years by K-Mart as a salesman and stock clerk at a rate of $2.90 per hour before termination on April 16, 1977. Prior to termination, Mendelson had a conference with an employer representative in which his poor work performance was discussed. Mendelson was told to either improve his performance within 30 days or face possible discharge. The referee found that, after discussing the warning with his wife, Mendelson elected to quit and gave employer a two-week notice on April 1, 1977. He then applied for unemployment compensation benefits.
Mendelson's appeal to this Court posits these issues:
I. Did the referee base his findings of fact upon substantial evidence in the record?
II. Did the manner in which the referee conducted the hearing deprive Mendelson of due process of law?
Mendelson contends that he was discharged, and that testimony relative to the two-week termination notice is hearsay. This is unsupported by the record as exemplified by the following segment:
Referee:
At any time, Mr. McCann, had you ever told the claimant he was fired as of today or in two weeks or in one month?
Employer Representative:
I certainly did not.
Moreover, we agree that the testimony of employer representative relating a telephone conversation with the personnel supervisor was hearsay. It is axiomatic that a finding of fact based solely on hearsay will not stand but hearsay evidence, if admitted without objection, will be given its natural probative effect and may support a finding if it is corroborated by any competent evidence in the record. Walker v. Unemployment Compensation Board of Review, 27 Pa. Commw. 522, 367 A.2d 366 (1976).
Claimant's response to the referee's question of whether or not he had gone to the personnel supervisor and given a two week termination notice was that he did not remember. Such an answer is incomprehensible in light of the significance of the event.
However, in this record we see the testimony of employer representative and Mendelson in support of the employer's version of the disputed conversation. The testimony of Mendelson's rendition of his conversation with employer's representative is as follows: "He gave me an ultimatum. He gave me an ultimatum. Improve in 30 days or you'll be out the door and looking in the classified ads for another job." Thus, hearsay evidence combined with Mendelson's testimony constitutes competent evidence to support the referee's finding that Mendelson elected to leave to avoid a discharge.
That Mendelson was "upset" and "disturbed" because he had been told to improve his work performance or suffer replacement is no basis for leaving the employment. The record properly convinced the referee that Mendelson's self-termination was unreasonable and imprudent. See Rizzitano v. Unemployment Compensation Board of Review, 32 Pa. Commw. 59, 377 A.2d 1060 (1977).
The referee and Board properly concluded that the termination was not for cause of a necessitous and compelling nature.
Mendelson's second contention that the referee's conduct of the hearing deprived him of due process of law is likewise without merit. He argues that the referee, in failing to explicitly advise him to make evidentiary objections, was in error. It may be desirable and beneficial for referees to so advise unrepresented claimants, but we know of no specific obligation whose disregard violates due process. Neither due process nor the rules of procedure governing referees' hearings in unemployment compensation cases requires him to provide affirmative assistance. Gonzalez v. Unemployment Compensation Board of Review, 39 Pa. Commw. 70, 395 A.2d 292 (1978). No limitation was put on the parties' testimony. In short, he had his day.
Accordingly, we
ORDER
AND NOW, this 19th day of June, 1979, the decision of the Unemployment Compensation Board of Review, No. B-148116, dated August 3, 1977, is hereby affirmed.