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GARY L. KISTLER v. COMMONWEALTH PENNSYLVANIA (07/01/80)

decided: July 1, 1980.

GARY L. KISTLER, 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 Gary L. Kistler, No. B-167777.

COUNSEL

Vincent J. Quatrini, Jr., for petitioner.

Stephen Lipson, Assistant Attorney General, with him John T. Kupchinsky, Assistant Attorney General, Richard Wagner, Chief Counsel and Edward G. Biester, Jr., Attorney General, for respondent.

Judges Mencer, Craig and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 52 Pa. Commw. Page 466]

Gary L. Kistler (Petitioner) was last employed by Mini Cinemas (Employer) as a theater manager on August 2, 1978. At the time of his separation from employment, Petitioner was being paid $200. per week. Petitioner here appeals from a decision of the Unemployment Compensation Board of Review (Board) denying unemployment compensation benefits to him on the ground that he voluntarily terminated his employment without cause of a necessitous and compelling nature and, therefore, was ineligible for benefits 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). The Bureau (now Office) of Employment Security and a referee had found Petitioner ineligible for benefits on the same basis. The only issue Petitioner appears to raise for our consideration is whether the Board erred in concluding that Petitioner did

[ 52 Pa. Commw. Page 467]

    not have cause of a necessitous and compelling nature for terminating his employment.*fn1 For the reasons which follow, we affirm the Board's order.

Our Supreme Court, in Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 355, 378 A.2d 829, 831 (1977), established the standards we are to follow in considering cases such as this:

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

[ 52 Pa. Commw. Page 468]

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).

A claimant may sustain the burden of proving a cause of necessitous and compelling nature by showing that his or her conduct in voluntarily terminating employment was consistent with ordinary common sense and prudence and that the circumstances prompting the termination were real, substantial, and reasonable, not imaginary, trifling, or whimsical. Weglarz v. Unemployment Compensation Board of Review, 41 Pa. Commonwealth Ct. 505, 506, 399 A.2d 819, 820 (1979); Amico v. Unemployment Compensation Board of Review, 36 Pa. Commonwealth Ct. 566, 568, 388 A.2d 349, 351 (1978). Ultimately, the issue of a cause of necessitous ...


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