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BETH ANN ONUSKA v. COMMONWEALTH PENNSYLVANIA (04/19/82)

decided: April 19, 1982.

BETH ANN ONUSKA, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeal from the Order of the Unemployment Compensation Board of Review in the case of In Re: Claim of Beth Ann Onuska, No. B-182062.

COUNSEL

Scott L. Melton, Conte & Courtney, for petitioner.

Francine Ostrovsky, Associate Counsel, with her Michael S. Fedor, Associate Counsel, and Richard L. Cole, Jr., Chief Counsel, for respondent.

Judges Mencer, Rogers and Williams, Jr., sitting as a panel of three. Opinion by Judge Williams, Jr. This decision was reached prior to the resignation of Judge Mencer. Dissenting Opinion by Judge Rogers.

Author: Williams

[ 66 Pa. Commw. Page 256]

This case comes before the Court on a claimant's appeal of a determination of the Unemployment Compensation Board of Review (Board) that she was not entitled to benefits under Section 402(b)(1) of the Unemployment Compensation Law (Act)*fn1 because she

[ 66 Pa. Commw. Page 257]

    failed to prove that her voluntary termination was caused by necessitous and compelling reasons. We affirm.

The findings of the referee*fn2 indicate that claimant had been employed for slightly more than four years as a dental assistant when she was placed on probation for deteriorating work performance. About six weeks later she resigned, alleging (1) that her employer was performing unnecessary dental procedures on welfare patients, and (2) that he was billing the Commonwealth for services he had not provided. These activities had been going on during the entire period of her employment.

The referee also found that the claimant was not qualified to judge whether the controversial procedures were necessary or not, and that she was not involved in the alleged overbilling. Summarizing claimant's testimony, the referee went on to "find" that

     the claimant voluntarily terminated her employment for the alleged reason she no longer wanted to be involved in the alleged unnecessary dental work which was allegedly being performed by her employer and the alleged illegal activities. . . .

Claimant relied on Zinman v. Unemployment Compensation Board of Review, 8 Pa. Commonwealth Ct. 649, 305 A.2d 380 (1973), in arguing that legal and moral pressures compelled her to resign. However, we find that Zinman, although relevant, is not indistinguishable from the case presently before us.

Our scope of review

     in the absence of fraud, is confined to questions of law and a determination of whether the findings

[ 66 Pa. Commw. Page 258]

    of the Unemployment Compensation Board of Review are supported by the evidence, leaving to the Board questions of credibility and weight of the evidence and giving to the prevailing party the benefit of any favorable inferences which can reasonably and logically be drawn therefrom. (Emphasis omitted.)

Horace W. Longacre, Inc. v. Unemployment Compensation Board of Review, 12 Pa. Commonwealth Ct. 176, 178, 316 A.2d 110, 111 (1974).

Our review of the record indicates that much of the evidence supporting the contested findings of fact can be found in the testimony of the claimant herself, who admitted that she had not been trained to recognize dental decay, and that her training was "for putting in fillings and answering the phone."*fn3 A significant*fn4 ...


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