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JOSEPH W. CUNNINGHAM v. UNEMPLOYMENT COMPENSATION BOARD REVIEW COMMONWEALTH PENNSYLVANIA (06/08/76)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: June 8, 1976.

JOSEPH W. CUNNINGHAM, APPELLANT,
v.
UNEMPLOYMENT COMPENSATION BOARD OF REVIEW OF THE COMMONWEALTH OF PENNSYLVANIA, APPELLEE

Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Joseph W. Cunningham, No. B-127723.

COUNSEL

Joseph W. Cunningham, appellant, for himself.

Charles G. Hasson, Assistant Attorney General, with him Sydney Reuben, Assistant Attorney General, and Robert P. Kane, Attorney General, for appellee.

President Judge Bowman and Judges Mencer and Rogers, sitting as a panel of three. Opinion by President Judge Bowman. Judge Kramer did not participate in the decision in this case.

Author: Bowman

[ 25 Pa. Commw. Page 135]

This is an appeal by Joseph W. Cunningham from an order of the Unemployment Compensation Board of Review dated September 12, 1975, which affirmed a referee's denial of benefits to Cunningham. Benefits were denied on the basis of 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), which reads in pertinent part as follows:

[ 25 Pa. Commw. Page 136]

"An employe shall be ineligible for compensation for any week --

"(b)(1) In which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature. . . ."

The only issue is whether there is evidentiary support for the referee's finding that Cunningham voluntarily terminated his employment in anticipation of going into business for himself. Cunningham maintains that he was laid off.

Cunningham was the only witness at the hearing, and he testified that he lost his position as a bartender because the owner of the establishment at which he worked decided to replace him with a barmaid. Cunningham also produced a letter from his employer which tended to confirm that he had been laid off, although the primary reason specified in the letter was "bar income compared to the number of bartenders employer."

[ 25 Pa. Commw. Page 137]

Unfortunately for Cunningham, a "Summary of Interview" form was also admitted into evidence, this form being executed at the direction of the Bureau of Employment Security during the application process. In answer to the question "Why did you leave your job?", Cunningham, in his own hand, answered "Am buying my own bar." This form was completed on June 11, 1975, several weeks prior to the hearing, and the referee and the Board obviously chose to accept this evidence of the reason for Cunningham's separation over the subsequent explanation. Questions of credibility and the weight to be given any individual item of evidence are for the Board to determine, and we must accept the facts as found if evidentiary support exists.*fn1 Winkler v. Unemployment Compensation Page 137} Board of Review, 19 Pa. Commonwealth Ct. 49, 338 A.2d 770 (1975).

There is no doubt that leaving a job because a new opportunity is anticipated is not "cause of a necessitous and compelling nature," and we therefore

Order

And now, this 8th day of June, 1976, the order of the Unemployment Compensation Board of Review in the above-captioned matter, dated September 12, 1975, is affirmed.

Judge Kramer did not participate in the decision in this case.

Disposition

Affirmed.


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