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CATHY L. RUDY v. COMMONWEALTH PENNSYLVANIA (01/22/80)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: January 22, 1980.

CATHY L. RUDY, 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 Cathy Rudy, No. B-164546.

COUNSEL

Marian E. Frankston, with her, Philip F. McClelland, for petitioner.

Gary Marini, Assistant Attorney General, with him, Richard Wagner, Chief Counsel and Edward G. Biester, Jr., Attorney General.

Judges Mencer, DiSalle and Craig, sitting as a panel of three. Opinion by Judge Craig. This decision was reached prior to the expiration of the term of office of Judge DiSalle.

Author: Craig

[ 48 Pa. Commw. Page 634]

Claimant Cathy Rudy appeals from the Unemployment Compensation Board of Review's determination that she was ineligible for benefits under Section 402(b)(1) of the Unemployment Compensation Law, 43 P.S. ยง 802(b)(1)*fn1 because her voluntary termination from H & T Enterprises, where she had been employed for seven months as a massage attendant, was without necessitous and compelling cause.

The board expressly found that claimant voluntarily quit her job because she believed that she was being subjected to physical abuse and harassment by the customers of the employer. However, the board found that claimant had not produced credible testimony concerning any one incident involving physical abuse or harassment or hazardous work conditions.

The credibility of the witnesses and the weight to be given their evidence is a question for the referee and the board, and not for this reviewing court. Martin v. Unemployment Compensation Board of Review, 36 Pa. Commonwealth Ct. 304, 387 A.2d 998 (1978).

However much we might prefer to hold that any dissociation from this kind of enterprise is justified

[ 48 Pa. Commw. Page 635]

    by necessitous and compelling cause, we cannot do so without testimony deemed credible by the factfinder.

After reading the record carefully, we cannot conclude that the board capriciously disregarded competent evidence Stevens v. Unemployment Compensation Board of Review, 44 Pa. Commonwealth Ct. 242, 403 A.2d 221 (1979); because this court may not review the board's determination as to the claimant's credibility, we must affirm the order of the board denying claimant compensation.*fn2

[ 48 Pa. Commw. Page 636]

Order

And Now, this 22nd day of January, 1980, the order of the Unemployment Compensation Board of Review, No. B-164546 dated September 29, 1978 is affirmed.

This decision was reached prior to the expiration of the term of office of Judge DiSalle.

Disposition

Affirmed.


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