Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Martin Taylor, No. B-120719.
Mark B. Segal, with him Harold I. Goodman, for appellant.
Charles G. Hasson, with him Sydney Reuben, Assistant Attorney General, and Israel Packel, Attorney General, for appellee.
Judges Crumlish, Jr., Rogers and Blatt, sitting as a panel of three. President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Crumlish, Jr. Dissenting Opinion by Judge Rogers. Judge Kramer and Judge Blatt join in this dissent.
[ 19 Pa. Commw. Page 393]
This is a direct administrative appeal from a decision of the Unemployment Compensation Board of Review denying a claimant unemployment compensation on the ground that he voluntarily terminated his employment without cause of a necessitous and compelling nature and was thus disqualified 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).
The claimant, Martin Taylor, was last employed by Victor's Cafe, Philadelphia, Pennsylvania, for three years as a chef at $175.00 per week. Claimant is a black man, and Victor's Cafe is located in a predominantly white area of Philadelphia, serving a predominantly white clientele. On May 26, 1973, he terminated his employment there due to what he described as an atmosphere of racial tension prevailing at the cafe which made him mentally and physically ill while on the job. Shortly thereafter, he filed for unemployment compensation, but his application was disallowed by the Bureau of Employment Security under Section 402(b)(1), 43 P.S. § 802(b)(1).*fn1 On appeal, a referee and the Unemployment Compensation Board of Review (Board) sustained claimant's ineligibility under Section 402(b)(1), holding that claimant had
[ 19 Pa. Commw. Page 394]
failed to meet his burden of proving cause of a necessitous and compelling nature for his termination. In support thereof, the Board made the following findings of fact relevant to our review:
"2. The claimant contends that during this period of employment, incidents and remarks made on the employer's premises created an atmosphere of racial tension.
"3. The majority of remarks and incidents which claimant alleges created an atmosphere of racial tension was (sic) made by customers at the bar on the employer's premises.
"4. The claimant's work station was in the basement and most of the remarks and incidents as alleged by claimant ...