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DOROTHY A. BRENNAN v. COMMONWEALTH PENNSYLVANIA (01/30/85)

decided: January 30, 1985.

DOROTHY A. BRENNAN, 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 Dorothy A. Brennan, No. B-214031-B.

COUNSEL

Christine M. Nebel, for petitioner.

John S. Brendel, Buchanan Ingersoll, Professional Corporation, for intervenor employer, Westmoreland Management Corporation.

Judges Rogers and Williams, Jr., and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Williams, Jr.

Author: Williams

[ 87 Pa. Commw. Page 267]

This is an appeal by Dorothy A. Brennan from an Order of the Unemployment Compensation Board of Review (Board) which denied her claim for benefits. That order found that Brennan voluntarily left her employment without cause of a necessitous and compelling nature rendering her ineligible for benefits under Section 402(b) of the Unemployment Compensation Law (Law).*fn1 We affirm.

Brennan was last employed as a bookkeeper/secretary by Westmoreland Management Corporation (Westmoreland) from March 15, 1982 until September 27, 1982. Her normal work hours were 8:30 a.m. to 5:30 p.m., Monday through Friday. Brennan used public transportation to get to and from work. On Friday, September 25, 1982, Westmoreland's owner asked her to work overtime the next day, Saturday, September 25th. Brennan did not agree to work that Saturday, although she did not expressly tell the owner that she would not come in. Brennan did not work that Saturday; and when she reported to work the following Monday, September 27th, the owner told her that she was expected to work an additional hour each day from September 27 until October 1, 1982. Brennan was confused as to the duration of the overtime and whether she would be compensated for the extra work. Despite her confusion, she did not attempt to clarify the matter with her employer. Rather, Brennan simply told Westmoreland's controller that she was unable to work the additional hours and was leaving. The controller attempted to convince Brennan to change her mind and remain at work. Brennan did not do so, and left the office around noon that same day, never to return.

[ 87 Pa. Commw. Page 268]

Brennan applied for unemployment compensation benefits on September 28, 1982. The Office of Employment Security (OES) denied benefits finding her ineligible under Section 402(b) of the Law. The claimant appealed the OES determination to a referee who held a hearing on November 3, 1982. She appeared at the hearing without an attorney and elected to proceed with the hearing after being advised of her right to representation by the referee. Westmoreland was represented by counsel. On November 5, 1982 the referee issued a decision upholding the OES determination and found the claimant ineligible for benefits. Brennan appealed the referee's decision to the Board, which reversed the referee and awarded benefits. Westmoreland filed a timely request for reconsideration with the Board, which then proceeded to vacate its prior decision and reopened the case. After reconsideration, the Board affirmed the referee's denial of benefits. When Brennan's own request for reconsideration was denied, she petitioned this Court for review.

Brennan raises three assignments of error in her appeal to this Court. We shall address these seriatim.

The claimant's first contention is that several of the Board's factual findings*fn2 are not supported by

[ 87 Pa. Commw. Page 269]

    substantial evidence. However, in a voluntary termination case, the employee bears the burden of proof to show that the causes why she voluntarily left her employment were of a necessitious and compelling nature so as to be eligible for benefits. Genetin v. Unemployment Compensation Board of Review, 499 Pa. 125, 129-130, 451 A.2d 1353, 1355 (1982). Where the party with the burden of proof did not prevail before the Board, as Brennan failed to do here, our proper scope of review is to determine whether the Board's findings are in capricious disregard of any competent evidence, are consistent with each other and with the Board's legal ...


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