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GOETTLER DISTRIBUTING v. COMMONWEALTH PENNSYLVANIA (04/30/86)

decided: April 30, 1986.

GOETTLER DISTRIBUTING, INC., 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 Charlene Sedoris, No. B-223386.

COUNSEL

Lawrence P. Lutz, Lindsay & Kemper, for petitioner.

Charles D. Donahue, Associate Counsel, with him, Charles G. Hasson, Acting Deputy Chief Counsel, for respondent.

President Judge Crumlish, Jr., Judge Colins, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Blatt. Dissenting Opinion by President Judge Crumlish, Jr.

Author: Blatt

[ 96 Pa. Commw. Page 633]

Goettler Distributing, Inc. (employer) appeals an order of the Unemployment Compensation Board of Review (Board) which awarded benefits to Charlene Sedoris (claimant) on the basis that she had voluntarily

[ 96 Pa. Commw. Page 634]

    terminated her employment for cause of a necessitous and compelling nature.*fn1

The Board's findings indicate that the claimant's desk at work was positioned near an air conditioning vent, that shortly after beginning her employment she began to experience sinus headaches due to the air conditioning and that she attempted to work while experiencing the headaches which, however, became progressively worse. It was further found that the claimant had been under a doctor's care for the headaches, that she had notified the employer that she was getting such headaches from her exposure to the air conditioning, that she requested that the employer move her desk away from the air conditioning vent and that the employer denied this request. The Board also found that the claimant continued to experience the sinus headaches and that she again notified the employer of her headaches four weeks before her last day of work.

The employer first contends that the Board arbitrarily and capriciously disregarded the findings of fact made by the referee, asserting that the Board made different findings based upon credibility determinations contrary to those made by the referee. It argues that the Board thereby violated our Supreme Court's decision in Treon v. Unemployment Compensation Board of Review, 499 Pa. 455, 453 A.2d 960 (1982). As the employer concedes, however, the different findings made by the Board were based upon its credibility determinations in resolving conflict in the testimony. Pursuant to Treon, the Board need not provide reasons for making findings

[ 96 Pa. Commw. Page 635]

    different from the referee where the findings in question are based upon the resolution of conflicting evidence. Moreover, the Supreme Court has recently reiterated that the Board is the ultimate arbiter of witness credibility and, therefore, is the ultimate finder of fact where there is conflicting evidence in the record. Peak v. Unemployment Compensation Board of Review, 509 Pa. 267, 501 A.2d 1383 (1985).

The employer also contends that there was not competent evidence adduced to support the claimant's assertion of a work-related health problem justifying her voluntary termination. It argues that the claimant's own testimony and the medical certificate she offered, which stated merely that her subjective symptoms improved upon her withdrawal from work, but not that she had ...


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