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JOHN D. STORMER v. COMMONWEALTH PENNSYLVANIA (10/21/77)

decided: October 21, 1977.

JOHN D. STORMER, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of John D. Stormer, No. B-134100.

COUNSEL

Dennis Gonachini, for petitioner.

Michael Klein, Assistant Attorney General, with him Sydney Reuben, Assistant Attorney General, and Robert P. Kane, Attorney General, respondent.

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

Author: Rogers

[ 32 Pa. Commw. Page 221]

John D. Stormer filed an application for unemployment benefits on which he stated that he lost his job as truck driver for Matt Calandra & Son because there was "[n]o work for me." He received $350.00 in benefits before the Bureau of Employment Security learned

[ 32 Pa. Commw. Page 222]

    that Stormer had voluntarily quit his job while work was still available. In an interview with a Bureau representative Stormer admitted that he had quit but said that he did so because his employer refused to remove allegedly unsafe tires from the truck Stormer operated. The Bureau determined (1) that pursuant to 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. ยง 802(b)(1), Stormer was ineligible for benefits because he voluntarily left work without a cause of necessitous and compelling nature; and (2) that the payment of the $350.00 benefits was occasioned by Stormer's original false statement that he left his employment because no work was available and therefore constituted a "fault overpayment" under Section 804(a) of the Law, 43 P.S. ยง 874(a).

Both Bureau determinations were affirmed by a referee. The Unemployment Compensation Board of Review affirmed the referee's decision and this appeal by Stormer followed. We affirm.

One who voluntarily terminates his employment has the burden of proving that his quitting was for cause of a necessitous and compelling nature in order to qualify for benefits under the Unemployment Compensation Law. Pfafman v. Unemployment Compensation Board of Review, 7 Pa. Commonwealth Ct. 197, 300 A.2d 295 (1973). A claimant may sustain this burden by demonstrating that his conduct was consistent with ordinary common sense and prudence. Aluminum Co. of America v. Unemployment Compensation Board of Review, 15 Pa. Commonwealth Ct. 78, 324 A.2d 854 (1974). This Court's scope of review in an appeal from a decision of the Board which is against the party with the burden of proof is to determine whether the Board's findings are consistent with each other and with the conclusions and order of the Board and whether

[ 32 Pa. Commw. Page 223]

    they can be sustained without capricious disregard of competent evidence. Zysk v. Unemployment Compensation Board of Review, 12 Pa. Commonwealth Ct. 409, 316 A.2d 663 (1974). Questions of credibility and weight to be given the evidence are within the exclusive province of the Board and will not be disturbed on appeal. Taylor v. Unemployment Compensation Board of Review, 19 Pa. Commonwealth Ct. 391, 338 A.2d 702 (1975).

At the referee's hearing, Stormer testified that while he was operating the only tractor trailer owned by his employer a front steering axle tire blew out, and that while surveying the damages he observed that the truck tires were stamped "blemished." Stormer says that he asked his employer to replace the tires and quit when his employer refused to do so. Stormer contends that his leaving his job was for two compelling and necessitous reasons: first, that driving a truck with "blemished" tires was hazardous to his and the public's safety; and secondly, that the use of such tires ...


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