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BETTY A. SPENCER v. COMMONWEALTH PENNSYLVANIA (12/04/85)

December 4, 1985

BETTY A. SPENCER, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeal from PETITION FOR REVIEW Court

COUNSEL

Edward M. Pulaski, Esq., LEGAL SERVICES OF NORTHEASTERN PENNSYLVANIA, INC., Wilkes-Barre, Pa. 18701 for Petitioner.

Charles Hasson, Esq., Michael Alsher, Esq., Harrisburg, Pa. 17120 for Respondent.

Before Hon. James Crumlish, Jr., Pres. Judge; Hon. Theodore O. Rogers; Hon. John A. MacPhail; Hon. Joseph T. Doyle; Hon. Francis A. Barry; Hon. James Gardner Colins; Hon. Madaline Palladino concurring. Judge Macphail, Dissenting; Jd. Doyle Join IN This Dissent

Author: Palladino

PALLADINO, J.

Betty A. Spencer (Claimant) appeals from a decision of the Unemployment Compensation Board of Review (Board) which reversed a referee's decision and denied benefits pursuant to Section 402(e) of the Unemployment Compensation Law (Law).*fn1 For the reasons set forth below, we vacate and remand for additional findings of fact.

Claimant was employed by the Cross Mountain View Guest Home (Employer) as a nurse's aide from October 30, 1982 to November 7, 1982. Claimant was discharged because she refused to work in the kitchen, cooking food for the Employer's paying guests. The referee found that, at the time she was hired, Claimant and the Employer agreed that Claimant would not be required to perform any cooking duties. The referee held that it was not willful misconduct for Claimant to refuse to perform work which the Employer had previously agreed she would not have to do, and granted benefits.

The Board, without taking any additional testimony or evidence, found that the Employer had told Claimant that her duties would involve working in the kitchen on some days, and that Claimant was aware of these duties when she accepted the job. Based on these findings, the Board concluded that Claimant's refusal to cook constituted willful misconduct, which rendered her ineligible for benefits.

The sole basis for the Board's reversal of the referee's decision was the Board's determination that the Employer's testimony concerning the stated terms of Claimant's employment was more credible than the testimony of Claimant, although the referee had accepted Claimant's testimony. The issue presented in this appeal is whether a credibility determination between conflicting testimony, made by a referee who sees and hears the witnesses, may be reversed by the Board only because the Board finds the testimony rejected by the referee to be more credible than the testimony accepted by the referee.

The responsibilities of the referee are set forth in Section 502, 43 P.S. ยง 822, which states:

Decision of referee; further appeals and reviews

Where an appeal from the determination or revised determination, as the case may be, of the department is taken, a referee shall, after affording the parties and the department reasonable opportunity for a fair hearing, affirm, modify, or reverse such findings of fact and the determination or revised ...


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