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JERRY WEISSMAN v. COMMONWEALTH PENNSYLVANIA (01/06/86)

decided: January 6, 1986.

JERRY WEISSMAN, 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 Margaret L. Monteleone, No. B-221701.

COUNSEL

Lawrence P. Lutz, with him, Alexander H. Lindsay, Jr., Lindsay & Kemper, for petitioner.

Bruno A. Muscatello, Stepanian & Muscatello, for intervenor, Margaret L. Monteleone.

Judges Doyle and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Palladino. Senior Judge Barbieri concurs in the result only.

Author: Palladino

[ 94 Pa. Commw. Page 68]

This is an appeal by Jerry Weissman (Employer) from an order of the Unemployment Compensation Board of Review (Board), which reversed a referee's decision and awarded benefits to Margaret L. Monteleone (Claimant). The Board concluded that Claimant voluntarily terminated her employment for a cause of a necessitous and compelling nature pursuant to Section 402(b) of the Unemployment Compensation Law (Law).*fn1 We affirm.

The facts, as found by the Board,*fn2 are as follows: Claimant was last employed as an optician by Employer on April 19, 1983, on which date she voluntarily terminated her employment because of continued sexual harassment from her employer and because she had been falsely accused of being rude to customers. Employer had made several sexually-oriented and embarrassing comments to and about Claimant in front of customers and co-workers during Claimant's five years of employment. Two weeks prior to Claimant's termination, Employer had grabbed Claimant's hand and proceeded to kiss her hand and arm, saying "I want your body." This incident occurred in the presence of Claimant's co-workers. On Claimant's last day at work she received a telephone call from Employer's wife, who acted as Employer's office manager. Employer's wife falsely accused

[ 94 Pa. Commw. Page 69]

Claimant of being rude to a customer and stated that Claimant was required to do whatever a customer wanted, including "getting down on her hands and knees and barking like a dog." The Board further found that Claimant had repeatedly requested that Employer "leave her alone," and that Claimant's husband had met with Employer in 1980 to discuss the sexual harassment.

The Board concluded that the false accusations, and being told that she must do anything that a customer requested, coupled with the continued sexual harassment by Employer, constituted a cause of necessitous and compelling nature for Claimant to voluntarily terminate her employment. The Board, therefore, granted benefits to Claimant. On appeal from the Board's order, Employer raises two arguments: 1) that the Board erred in making findings of fact contrary to the findings made by the referee; and 2) that the facts, as found by the Board, are insufficient as a matter of law to constitute a cause of necessitous and compelling nature to terminate one's employment.

In support of his first argument Employer relies upon the Pennsylvania Supreme Court case of Treon v. Unemployment Compensation Board of Review, 499 Pa. 455, 453 A.2d 960 (1982) for the proposition that the Board may not make findings of fact contrary to those made by the referee. This proposition, however, is not what the Treon Court held. In Treon the only testimony presented was that of the claimant. The claimant's testimony was consistent and uncontradicted. Based upon this testimony the referee made four findings of fact. On appeal to the Board, the Board adopted three of the four findings without giving any reason for its failure to adopt the fourth finding. When presented with this scenario, the Supreme Court of Pennsylvania acknowledged that the Board had the right to disbelieve even the uncontradicted

[ 94 Pa. Commw. Page 70]

    testimony of the claimant, but stated that the Board may not "simply disregard findings made by the referee which are based upon consistent and uncontradicted testimony without stating its ...


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