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MARY JANE KOMAN v. COMMONWEALTH PENNSYLVANIA (09/17/81)

decided: September 17, 1981.

MARY JANE KOMAN, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT. RICHARD W. KING, D.M.D., INTERVENOR



Appeal from the Order of the Unemployment Compensation Board of Review in the case of In Re: Claim of Mary Jane Koman, No. B-181099.

COUNSEL

Charles C. Bell, for petitioner.

Edward B. Wood, Rose, Schmidt, Dixon, Hasley, Whyte & Hardesty, for intervenor.

No appearance for respondent.

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

Author: Palladino

[ 61 Pa. Commw. Page 605]

Claimant appeals an order of the Unemployment Compensation Board of Review (Board) which without taking additional evidence, affirmed a referee's denial of benefits pursuant to Section 402(b)(1) of the Unemployment Compensation Law (Law).*fn1 We affirm.

[ 61 Pa. Commw. Page 606]

Claimant voluntarily terminated her employment after receiving a paycheck from which money had been deducted because Claimant allegedly exceeded her allotted vacation time. In this appeal Claimant challenges the Board's determination that she is ineligible for benefits because she quit her job without cause of a necessitous and compelling nature.

"In voluntary termination cases, the burden is upon the employee to prove [a] necessitous and compelling reason for leaving. . . ." Ruckstuhl v. Unemployment Compensation Board of Review, 57 Pa. Commonwealth Ct. 302, 305, 426 A.2d 719, 721 (1981). Where, as here, the party with the burden of proof did not prevail before the Board, this Court's scope of review consists of determining whether the findings of fact can be sustained without a capricious disregard of competent evidence and are consistent with each other and with the conclusions of law. Helsel v. Unemployment Compensation Board of Review, 54 Pa. Commonwealth Ct. 320, 421 A.2d 496 (1980).

Citing Emgee Engineering Co. v. Unemployment Compensation Board of Review, 30 Pa. Commonwealth Ct. 290, 373 A.2d 779 (1977), Claimant contends that her termination was necessitated by her employer's failure to pay her wages promptly. In Emgee Engineering Co. there were " several instances within the space of a few months where the employees arrived at work on payday to suddenly discover that their paychecks would not be received for some indeterminate number of days." Id. at 295, 373 A.2d at 782 (emphasis in original). However, in the present case

[ 61 Pa. Commw. Page 607]

Claimant received late wage payments on only two occasions: (1) after her employer's entire office was closed for a vacation week and (2) after an apparent error by the employer's bookkeeper required a corresponding adjustment of Claimant's wages. While in Emgee Engineering Co. late payments were a constant recurrence caused by the employer's admitted cash-flow problems, in the case at bar Claimant did not ...


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