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WILLIAM B. HENN v. COMMONWEALTH PENNSYLVANIA (09/13/82)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: September 13, 1982.

WILLIAM B. HENN, 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 William B. Henn, No. B-191292.

COUNSEL

Lowell T. Williams, for petitioner.

William J. Kennedy, Associate Counsel, with him Richard L. Cole, Jr., Chief Counsel, for respondent.

President Judge Crumlish and Judges Craig and Doyle, sitting as a panel of three. Opinion by President Judge Crumlish, Jr.

Author: Crumlish

[ 69 Pa. Commw. Page 29]

William Henn appeals an Unemployment Compensation Board of Review denial of benefits and an assessment of a fault overpayment. We affirm.

Henn, a Fiore Trucking employee, was laid off in March of 1980 and recalled to work in July 1980. On his second day at work he found that his assigned truck's power steering was inoperable and so informed his dispatcher. The dispatcher informed him that this was the only available truck; that he should either drive it or go home. Henn chose the latter course.

[ 69 Pa. Commw. Page 30]

Section 402(b)(1) of the Unemployment Compensation Law*fn1 provides that a claimant will be ineligible for benefits for any week "[i]n which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature. . . ."

The claimant has the burden of proving a cause of necessitous and compelling nature for his voluntary quit. Kuhn v. Unemployment Compensation Board of Review, 61 Pa. Commonwealth Ct. 176, 432 A.2d 1156 (1981). Our scope of review, where the party with the burden of proof has failed to prevail below, is limited to determining whether the conclusions of law and the findings of the Board can be sustained without a capricious disregard of competent evidence.*fn2 The issue of necessitous and compelling reason is a question of law for this Court's review. York Tape and Label Corp. v. Unemployment Compensation Board of Review, 62 Pa. Commonwealth Ct. 163, 435 A.2d 305 (1981).

The referee, as the sole arbiter of credibility,*fn3

[ 69 Pa. Commw. Page 31]

Doyle v. Unemployment Compensation Board of Review, 57 Pa. Commonwealth Ct. 494, 426 A.2d 756 (1981), rejected Henn's testimony that his refusal was based on fear for the safety of himself and his co-workers. Henn does not dispute any of the Board's*fn4 findings, but now urges that this Court, as an alternative to reversing the referee, remand the case so that he can prove that he could not physically handle the truck. We reiterate that Henn bore the burden, in the first instance, to prove necessitous and compelling reason. Having failed to meet this burden, benefits must be denied.

Affirmed.

Order

The order of the Unemployment Compensation Board of Review, No. B-191292 dated January 1, 1981, is affirmed.

Amending Order

Now, September 16, 1982, the Order dated September 13, 1982, in the above captioned case is hereby amended to read as follows:

The order of the Unemployment Compensation Board of Review, No. B-191292 dated January 9, 1981, is affirmed.

Disposition

Affirmed.


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