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ROCKY RYAN v. COMMONWEALTH PENNSYLVANIA (08/09/82)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: August 9, 1982.

ROCKY RYAN, 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 Rocky Ryan, No. B-181301.

COUNSEL

Marian Benton, with her Stephen F. Gold, and Edward Sparkman, for petitioner.

Charles Hasson, Associate Counsel, with him Steven R. Marcuse, Assistant Attorney General, Richard Wagner, Chief Counsel, Assistant Attorney General, and Harvey Bartle, III, Attorney General, for respondent.

President Judge Crumlish, Jr. and Judges Blatt and Craig. President Judge Crumlish, Jr. and Judges Rogers, Blatt, Craig, MacPhail and Doyle. Opinion by President Judge crumlish, Jr. Judge Mencer did not participate in the decision in this case. Judge MacPhail dissents.

Author: Crumlish

[ 68 Pa. Commw. Page 209]

Rocky Ryan appeals an Unemployment Compensation Board of Review decision denying benefits for voluntarily terminating her employment without cause of necessitous and compelling nature.*fn1 We reverse.

Employed as an apartment manager for the Gulphwyn Corporation, Ryan walked off the job after a quarrel with her parents, who were also her employer. Ryan filed an application for benefits, and informed the Office of Employment Security that she was unemployed because of mental stress caused by working for her parents. The referee and Board affirmed the denial of benefits, and found that she had voluntarily terminated employment without a necessitous or compelling reason.

Ryan argues here that, after their verbal altercation, she not only expressed an intention to return but that several hours later her father informed her not to return to work, that she was consequently discharged, and therefore did not voluntarily terminate her employment.

[ 68 Pa. Commw. Page 210]

While the question of voluntarily leaving work is one of law properly subject to our review and determination, resolution of this legal question normally depends upon not only the testimony given below but the facts found by the Board. Sears, Roebuck & Co. v. Unemployment Compensation Board of Review, 39 Pa. Commonwealth Ct. 170, 394 A.2d 1329 (1978). Although questions of credibility are left for the Board's resolution, we must examine the testimony in the light most favorable to the party in whose favor the Board rendered its decision. Helsel v. Unemployment Page 210} Compensation Board of Review, 54 Pa. Commonwealth Ct. 320, 421 A.2d 496 (1980).

Here, the Board examined the testimony, weighed its credibility, and concluded that Ryan left her employment when continuing work was available with no prospects of alternative employment. We disagree.

Where an employee resigns or quits her employment, absent any action by the employer, the law is clear that the termination amounts to voluntarily leaving work. Sweigart v. Unemployment Compensation Board of Review, 47 Pa. Commonwealth Ct. 421, 408 A.2d 561 (1979). The general principle followed in these cases is that an employee who is absent from work without authorization and without taking steps to preserve the relationship by telling the employer if and when he may return may be held to have voluntarily quit. Metzger v. Unemployment Compensation Board of Review, 28 Pa. Commonwealth Ct. 571, 368 A.2d 1384 (1977). However, the majority of these disputes have resulted from either unreasonable or inordinately long absence periods.*fn2 We must therefore examine each matter in light of the facts and in view of the law, and determine whether the employee's actions amount to an outright termination or are tantamount to either an abandonment or resignation of employment.

Here, although the record reveals conflicting testimony concerning Ryan's intentions on returning to work, the testimony is very clear that she was shortly

[ 68 Pa. Commw. Page 211]

    thereafter instructed by her father not to return to work.*fn3

Consequently, the supporting circumstances outside of the initial incident leave us with no competent evidence*fn4 to support a conclusion that, as a matter of

[ 68 Pa. Commw. Page 212]

    law, her actions amounted to a voluntary termination of her employment. We thus conclude that she was discharged by her father. Because her father presented no evidence on the issue of whether the discharge was predicated on willful misconduct, we must reverse and remand for the computation of benefits. See Wing v. Unemployment Compensation Board of Review, Pa. , 436 A.2d 179 (1981).

Order

The Unemployment Compensation Board of Review decision, No. B-181301 dated February 25, 1980, is hereby reversed and the matter is remanded to the Board for a computation of benefits consistent with this Opinion.

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

Judge MacPhail dissents.

Disposition

Reversed and remanded.


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