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ELEANOR E. WALSH v. COMMONWEALTH PENNSYLVANIA (12/16/74)

decided: December 16, 1974.

ELEANOR E. WALSH, APPELLANT,
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, APPELLEE



Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Eleanor E. Walsh, No. B-119435.

COUNSEL

William J. O'Brien, with him Pepper, Hamilton & Sheetz, for appellant.

Sydney Reuben, Assistant Attorney General, with him Israel Packel, Attorney General, for appellee.

Judges Crumlish, Jr., Wilkinson, Jr. and Rogers, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 16 Pa. Commw. Page 156]

Eleanor E. Walsh here appeals from an order of the Unemployment Compensation Board of Review affirming

[ 16 Pa. Commw. Page 157]

    a referee's decision denying her unemployment compensation benefits.

Ms. Walsh was employed on a part-time basis by the J.B. Smith Company as a clerical worker from January 1967 until November 1971, when she took employment elsewhere. Ms. Walsh was reemployed by J. B. Smith in October 1972 and worked for that company until June 15, 1973, when she voluntarily quit.

The substantive issue is whether Ms. Walsh left her work without cause of a necessitous and compelling nature. 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. ยง 802(b)(1); and Ms. Walsh bore the burden of showing that her voluntary quit was with such cause. Stalc v. Unemployment Compensation Board of Review, 13 Pa. Commonwealth Ct. 131, 318 A.2d 398 (1974). She asserted two reasons for leaving: first, that her employer violated an agreement made at the time of her rehiring that she should be paid on a salary rather than a wage basis, and second, that the odor of paint at her work station in the employer's offices adversely affected her health.

The facts were sharply in dispute. Ms. Walsh testified that when she was reemployed she was promised that she would first work for wages but go on salary upon the resignation of another employee, which was early expected, and that when that event occurred her employer failed to keep its promise. The employer's alleged violation of the asserted agreement, she stated, came to her attention when her weekly paycheck reflected a reduction as the result of her failure to work several days, with excuse for her absences. The employer's representatives denied that there was an agreement that Ms. Walsh, when hired, would be paid on an hourly wage basis or that it would change the method of payment at any later time.

[ 16 Pa. Commw. Page 158]

Concerning the smell of paint in the offices, the employer's representatives, while conceding that Ms. Walsh complained of this condition, as she testified, countered that such complaints were voiced only before it installed two electric air purifiers in January of 1973. The record is quite clear that Ms. Walsh did not tell her employer that her physician, who was treating her for diabetes, had advised her that the odor of paint was deleterious to her health, and not until the occasion of the Bureau of Employment Security's predetermination hearing, which took place about a month after Ms. Walsh's quitting her job, did she produce a doctor's certificate. This certificate, dated July 14, 1973, reads: "E. Walsh is under my care -- ...


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