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ROBERT E. WHISNER v. COMMONWEALTH PENNSYLVANIA (06/10/82)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: June 10, 1982.

ROBERT E. WHISNER, 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 Robert E. Whisner, No. B-191724.

COUNSEL

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

Steven J. Neary, Associate Counsel, with him Richard L. Cole, Jr., Chief Counsel, for respondent.

President Judge Crumlish and Judges Blatt and MacPhail, sitting as a panel of three. Opinion by President Judge Crumlish, Jr. Judge Mencer did not participate in the decision in this case.

Author: Crumlish

[ 67 Pa. Commw. Page 139]

Robert E. Whisner (employee) appeals from an Unemployment Compensation Board of Review (Board) denial of benefits. We remand for further fact findings.

On August 12, 1980, the day following his absence from work due to illness, Whisner's attendance record*fn1 as a Penn Pocahontas Coal Company employee became the subject of a verbal dispute with his supervisor, after which the employee voluntarily quit and left the employer's property. When subsequent contacts with his supervisor failed to resolve their mutual difficulties, Whisner filed for unemployment benefits.

Section 402(b) of the Pennsylvania Unemployment Compensation Law*fn2 provides in part that:

An employe shall be ineligible for compensation for any week --

(b) In which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature. . . . (Emphasis added.)

Whisner, having effected voluntarily his unemployed status, must demonstrate, as a prerequisite for benefits eligibility, a necessitous and compelling cause for the termination. Goughnour v. Unemployment Compensation Board of Review, 54 Pa. Commonwealth Ct. 83, 86, 420 A.2d 30, 32 (1980). Since the employee failed to meet his burden, our review is limited to determining whether or not the Board's fact findings

[ 67 Pa. Commw. Page 140]

    are consistent with each other and with the legal conclusions, and whether or not the findings can be sustained without capricious disregard of competent evidence.*fn3 Fanelly v. Unemployment Compensation Board of Review, 55 Pa. Commonwealth Ct. 110, 113, 422 A.2d 1214, 1216 (1980).

We are mindful, of course, that we are bound by fact findings adopted by the Board, Unemployment Compensation Board of Review v. Thomas, 24 Pa. Commonwealth Ct. 136, 138-39, 354 A.2d 46, 47 (1976), and that the prevailing party below is to be given the benefit of any inference which can be drawn reasonably and logically from the evidence. Condominium Corp. of Pennsylvania, Inc. v. Unemployment Compensation Board of Review, 41 Pa. Commonwealth Ct. 324, 326, 398 A.2d 1122, 1124 (1979). The pertinent fact findings are as follows:

2. The claimant voluntarily quit his job because he had a disagreement with his immediate supervisor and because he felt his safety had been violated.

6. The claimant had filed grievances earlier in regards to safety violations, however, the union had determined that the grievances should be handled no further. (Emphasis added.)

The referee's conclusion (and the Board's adoption thereof) presumably was based solely on the August 12, 1980 confrontation as well as on certain work safety violations. Whisner counters that these were not his principal reasons for quitting. He claims, rather, that his voluntary termination was the upshot of four months of harassment, abuse and provocation

[ 67 Pa. Commw. Page 141]

    perpetrated against him by his supervisors.*fn4 Continuous subjection to unjust accusations, abusive conduct and profane language may constitute "necessitous and compelling" cause*fn5 for the voluntary termination of employment. See Arufo v. Unemployment Compensation Board of Review, 37 Pa. Commonwealth Ct. 555, 558, 391 A.2d 43, 45 (1978). The referee, however, failed to make any findings resolving the issue of the supervisor's alleged continuous course of contumelious conduct. This failure to address Whisner's uncontradicted testimony*fn6 precludes our proper review

[ 67 Pa. Commw. Page 142]

    of this case. See Kostek v. Unemployment Compensation Board of Review, 38 Pa. Commonwealth Ct. 271, 273, 392 A.2d 909, 910 (1978).

[ 67 Pa. Commw. Page ]

Findings of fact "must include all findings necessary to resolve the issues raised by the evidence and which are relevant to a decision." Page's Department Store v. Velardi, 464 Pa. 276, 287, 346 A.2d 556, 561 (1975). (Emphasis added.) Whisner's allegations concerning his supervisor's protracted abusive behavior are clearly pertinent to his claim of necessitous and compelling cause. We cannot infer from the absence of a finding that the issue was resolved against the employee. Kostek at 273, 392 A.2d at 910. When the necessary fact findings have not been rendered, remand is required. See Spicer v. Unemployment Compensation Board of Review, 47 Pa. Commonwealth Ct. 272, 407 A.2d 929 (1979).

Remanded.*fn7

Order

The Unemployment Compensation Board of Review order, B-191724, dated January 1, 1981, is vacated, and the case is remanded to the Board for the making of new and adequate fact findings.

Amended Order

Now, June 15, 1982, the Order of this Court dated June 10, 1982, in the above captioned case is hereby amended to read as follows:

[ 67 Pa. Commw. Page 143]

The Unemployment Compensation Board of Review order, B-191724, dated January 27, 1981, is vacated, and the case is remanded to the Board for the making of new and adequate fact findings.

Judge Mencer did not participate in the decision in this case.

Disposition

Vacated and remanded.


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