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HELEN PARDUCCI v. COMMONWEALTH PENNSYLVANIA (07/26/82)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: July 26, 1982.

HELEN PARDUCCI, 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 Helen Parducci, No. B-190561.

COUNSEL

Judith Brown Chomsky, for petitioner.

Francine Ostrovsky, Associate Counsel, with her Richard L. Cole, Jr., Chief Counsel, for respondent.

President Judge Crumlish and Judges Rogers and Blatt, 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 625]

Helen Parducci appeals a decision of the Unemployment Compensation Board of Review which denied her benefits on a finding of voluntary quit.*fn1 We affirm.

Parducci, a packer in the kitchen of Superior Provisions, had been employed since 1973 avergaing 30 to 33 hours a week, depending on the volume of orders. In May 1980 she sought a guaranteed 36-hour work week, a guarantee which her employer could not make because of his straitened financial condition.*fn2

Parducci then, aided by her union representative, executed a separation agreement*fn3 by which she would

[ 67 Pa. Commw. Page 626]

    leave with a number of benefits thus permitting the employer to cease kitchen operations.

Parducci now asserts that the closing of the kitchen constituted a cause of necessitous and compelling reason for her termination, there being no work available for her. The employer testified that he discontinued the operation because he was unable to meet her demands.

It should be known by all now that a claimant has the burden of proof to prove a voluntary quit was for a cause of necessitous and compelling reason. Helsel v. Unemployment Compensation Board of Review, 54 Pa. Commonwealth Ct. 320, 421 A.2d 496 (1980). Where the party with the burden of proof has not prevailed below, our scope of review is limited to questions of law and whether the findings of fact can be sustained without a capricious disregard of competent evidence. Dennis v. Unemployment Compensation Board of Review, 55 Pa. Commonwealth Ct. 215, 423 A.2d 458 (1980).

Whether a claimant voluntarily terminated her employment is a question of law for this Court. York Tape and Label Corp. v. Unemployment Compensation Board of Review, 62 Pa. Commonwealth Ct. 163, 435 A.2d 305 (1981). There, however, is a presumption of the suitability of work which a claimant must overcome, Martelli v. Unemployment Compensation Board of Review, 62 Pa. Commonwealth Ct. 137, 435 A.2d 303 (1981), and mere dissatisfaction with hours and wages is not enough to overcome that presumption. Id.

We hold that the Board did not capriciously disregard evidence in finding that Parducci initiated the termination of her employment because she was dissatisfied with working conditions and that suitable work would have been available if she had not terminated.

Affirmed.

[ 67 Pa. Commw. Page 627]

Order

The order of the Unemployment Compensation Board of Review, No. B-190561 dated December 15, 1980, is affirmed.

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

Disposition

Affirmed.


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