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DELAWARE COUNTY PRISON v. COMMONWEALTH PENNSYLVANIA (02/11/83)

decided: February 11, 1983.

DELAWARE COUNTY PRISON, 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 Karen L. Booker, No. B-193462.

COUNSEL

Michael T. Ehling, Assistant County Solicitor, for petitioner.

John Kupchinsky, Associate Counsel, with him James K. Bradley, Associate Counsel, and Richard L. Cole, Jr., Chief Counsel, for respondent.

Judges Blatt, Williams, Jr. and Craig, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 72 Pa. Commw. Page 41]

The Delaware County Prison (employer) appeals an order of the Unemployment Compensation Board (Board) which awarded Karen L. Booker (claimant) benefits because she had voluntarily terminated her employment for cause of a necessitous and compelling reason under Section 402(b) of the Unemployment Compensation Law (Law).*fn1

The facts, as found by the Board, indicate that the claimant was employed as a correctional officer and

[ 72 Pa. Commw. Page 42]

    had voluntarily left her employment because of hazardous working conditions caused by the lack of an adequate number of qualified prison personnel. Specifically, it was determined by the Board that the claimant had been left alone on several occasions to oversee a large number of inmates -- some not in cells -- and that such a duty normally required two or three correctional officers. Additionally, although forced overtime for all personnel seems to have been the employer's policy, she was required to work considerably more hours than her fellow employees. The claimant discussed these problems with her employer, and was promised relief which never materialized. The Board further determined that the claimant nevertheless attempted to perform her duties under the aforementioned conditions before she quit and that she had been willing to remain employed if the conditions had been corrected as promised.

An employee who voluntarily terminates his or her employment bears the burden of establishing that such action was for cause of a necessitous and compelling reason under Section 402(b) of the Law. Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 378 A.2d 829 (1977). And where, as here, the party with the burden of proof has prevailed below, our scope of review in such unemployment compensation cases is limited to a determination of whether or not the Board committed an error of law or any necessary factual finding was unsupported by substantial evidence in the record, leaving determinations of credibility and evidentiary weight to the Board. Krieger v. Unemployment Compensation Board of Review, 52 Pa. Commonwealth Ct. 103, 415 A.2d 160 (1980).

The employer argues first that the claimant failed to sustain her burden before the Board. After carefully reviewing the record in this matter, however, we

[ 72 Pa. Commw. Page 43]

    believe that substantial evidence exists in the record to support the Board's findings. The mere fact that there may have been evidence presented to the contrary does not defeat this conclusion, for the Board, as we have stated, determines credibility and evidentiary weight. The employer concedes in its brief that the position of correctional officer is by nature inherently dangerous. Given this, and accepting, as we must, the Board's findings that the claimant's inherently dangerous job was further aggravated by inadequate staffing and an amount of overtime considerably greater than that of her fellow employees, we believe that the Board did not err in concluding that she had established cause of a necessitous and compelling nature under Section 402(b) of the Law, for voluntarily terminating her employment. Taylor (circumstances which produce pressure must be real and ...


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