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THOMAS D. KLIGGE v. COMMONWEALTH PENNSYLVANIA (04/26/85)

decided: April 26, 1985.

THOMAS D. KLIGGE, 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 Thomas D. Kligge, No. B-217063.

COUNSEL

Bradley L. Griffie, for petitioner.

James K. Bradley, Associate Counsel, with him, Charles G. Hasson, Acting Deputy Chief Counsel, for respondent.

Judge Colins, and Senior Judges Barbieri and Kalish, sitting as a panel of three. Opinion by Senior Judge Barbieri. Judge Williams, Jr. did not participate in the decision in this case.

Author: Barbieri

[ 89 Pa. Commw. Page 31]

Thomas D. Kligge, Claimant, appeals here a decision and order of the Unemployment Compensation Board of Review (Board) denying Claimant unemployment compensation benefits pursuant to Section 402(b) of the Unemployment Compensation Law.*fn1

Claimant, who was last employed by John S. Vayanos Contracting Co. as a carpenter, argues on appeal that the Board capriciously disregarded the evidence

[ 89 Pa. Commw. Page 32]

    of record when it concluded that Claimant voluntarily quit his job; in the alternative, Claimant argues that the case should be remanded to the Board for further testimony on the issue of the cause of Claimant's separation from employment.

The Board found that Claimant requested and was granted a two-week vacation to travel to Massachusetts; that when Claimant returned from his two-week vacation, he requested an additional week's vacation to travel to Philadelphia to visit family; that the employer denied the request, and that Claimant replied that family was more important to him than his job and that Claimant went on vacation and did not return to work. The Office of Employment Security (OES) had approved the grant of benefits pursuant to Section 402(e) of the Law*fn2 pursuant to information received from Claimant only.*fn3 The employer, who had requested a continuance after receiving notice of the hearing before the referee, did not appear at the first hearing, and the referee dismissed the appeal. The employer appealed the referee's dismissal to the Board and the Board, after remanding the appeal to a hearing officer appointed to take testimony from both parties, decided that the OES had inappropriately ruled under Section 402(e), the willful misconduct provision, and that Section 402(b), the voluntary quit provision, was the pertinent Section of the Law in the instant case. The Board concluded that the Claimant had not established compelling and necessitous cause for terminating his employment and that Claimant was, therefore, ineligible to receive benefits.*fn4

[ 89 Pa. Commw. Page 33]

The determination of whether a claimant's unemployment is the result of voluntarily leaving work is ultimately a question of law subject to our review. Schwarzenbach v. Unemployment Compensation Board of Review, 36 Pa. Commonwealth Ct. 137, 387 A.2d 519 (1978). Questions of credibility, however, are for the Board. Kells v. Unemployment Compensation Board of Review, 32 Pa. Commonwealth Ct. 142, 378 A.2d 495 (1977).

Our review of the record indicates a classic conflict in the testimony of Employer and Claimant. The Board's findings parallel the testimony of the Employer. Thus, the Board chose to believe the Employer. We ...


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