Harold I. Goodman, Mark B. Segal, Community Legal Services, Philadelphia, for appellant.
Sydney Reuben, Asst. Atty. Gen., Charles G. Hasson, Harrisburg, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Nix and Manderino, JJ. Pomeroy, J., did not participate in the consideration or decision of this case. Jones, former C. J., did not participate in the decision of this case.
Appellant, Martin Taylor, was denied unemployment compensation benefits by the Bureau of Employment Security and appealed. Following a hearing at which he was represented by counsel, and at which witnesses appeared and testified in his behalf, the referee affirmed the Bureau's determination of ineligibility on the ground that appellant's termination of employment was voluntary and not for necessitous and compelling reasons as required for eligibility by Section 402(b)(1) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex.Sess. P.L. (1937), as amended, 43 P.S. § 802(b)(1).
Section 402 provides in part that,
"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 . . . ."
In deciding against appellant, the referee concluded that certain incidents of racially derogatory language and slurs, which remarks appellant and his witnesses had testified had been directed at appellant by his employer, his co-workers, and by patrons of his employer's restaurant, did not give
appellant necessitous and compelling reasons for terminating his employment.
The Unemployment Compensation Board of Review (Board) adopted the referee's factual findings and affirmed the denial of compensation.
On Appeal, the Commonwealth Court affirmed the Board's decision. Taylor v. Unemployment Compensation Bd. of Review, 19 Pa. Commw. 391, 338 A.2d 702 (1975). We granted appellant's petition for allowance of appeal, and this appeal followed.
It is now axiomatic in an unemployment compensation case, that the findings of fact made by the Board, or by the referee as the case may be, are conclusive on appeal so long as the record, taken as a whole, contains substantial evidence to support those findings. Progress Manufacturing Co. Inc. v. Compensation Bd. of Review, 406 Pa. 163, 176 A.2d 632 (1962); Ristis Unemployment Compensation Case, 178 Pa. Super. 400, 116 A.2d 271 (1955); Stillman v. Unemployment Compensation Bd. of Review, 161 Pa. Super. 569, 56 A.2d 380 (1948). The appellate court's duty is to examine the testimony in the light most favorable to the party in whose favor the Board has found, giving that party the benefit of all inferences that can logically and reasonably be drawn from the testimony, to see if substantial evidence for the Board's conclusion exists. Furthermore, a claimant who alleges that he or she terminated employment for necessitous and compelling reasons, has the burden of establishing the existence of such reasons. See e. g., Owen v. Unemployment Compensation Bd. of Review, 26 Pa. Commw. 278, 363 A.2d 852 (1976); Unemployment Compensation Bd. of Review v. Cooper, 25 Pa. Commw. 256, 360 A.2d 293 (1976).
The record here shows that petitioner had been employed as a chef at Victor's Restaurant, Philadelphia, Pennsylvania, for three years. He was the only black employee at the establishment. Appellant testified that he had been subjected to numerous instances of racial discrimination, racial insults, and racial slurs by his employer, his co-workers, and
restaurant patrons. He claimed that the atmosphere of racial tension engendered by these events caused him to suffer physically and mentally while on the job and that when the ...