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EDWARD DONALDSON v. COMMONWEALTH PENNSYLVANIA (09/23/81)

decided: September 23, 1981.

EDWARD DONALDSON, 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 Edward Donaldson, No. B-182867.

COUNSEL

Donald M. Graffius, with him Gregory J. Karlick, for petitioner.

Karen Durkin, Assistant Attorney General, with her Richard Wagner, Chief Counsel, and Harvey Bartle, III, Attorney General, for respondent.

Judges Rogers, Blatt and Palladino, sitting as a panel of three. Opinion by Judge Palladino.

Author: Palladino

[ 62 Pa. Commw. Page 42]

Edward Donaldson (Claimant) appeals from an order of the Unemployment Compensation Board of Review (Board) affirming a referee's denial of benefits pursuant to Section 402(b)(1) of the Unemployment Compensation Law.*fn1 We affirm.

[ 62 Pa. Commw. Page 43]

Claimant was employed as a night auditor by Holiday Inn (Employer). Claimant voluntarily terminated his employment and attributed his termination to harassment arising out of rumors circulating among his co-workers.

It is the Claimant who has the burden of proving that the voluntary termination of his employment was for cause of a necessitous and compelling nature. Gaiser v. Unemployment Compensation Board of Review, 55 Pa. Commonwealth Ct. 259, 423 A.2d 57 (1980). Where the party with the burden of proof does not prevail before the Board, as in the instant case, this Court's scope of review is limited to determining whether the findings of fact are consistent with each other and with the conclusions of law and whether the findings can be sustained without a capricious disregard of competent evidence. Ruckstuhl v. Unemployment Compensation Board of Review, 57 Pa. Commonwealth Ct. 302, 426 A.2d 719 (1981).

Claimant's reliance on alleged harassment as a necessitous and compelling reason for voluntary termination is unfounded. Harassment by a supervisor or co-worker has been found to be a necessitous and compelling reason for voluntary termination. See Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 378 A.2d 829 (1977); Willet v. Unemployment Compensation Board of Review, 59 Pa. Commonwealth Ct. 500, 429 A.2d 1282 (1981).

In the instant case, however, the Board made the following finding: "5. The employees were not harassing the claimant." The Board is the ultimate fact

[ 62 Pa. Commw. Page 44]

    finder, and from our review of the record we conclude that the Board's finding was not in error. Bowman v. Unemployment Compensation Board of Review, 49 ...


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