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MARLA SHARE v. COMMONWEALTH PENNSYLVANIA (07/22/86)

decided: July 22, 1986.

MARLA SHARE, 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 Marla Share, No. B-235134.

COUNSEL

Alan S. Gold, Narin & Chait, for petitioner.

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

Judges Craig and Barry, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Barry.

Author: Barry

[ 99 Pa. Commw. Page 120]

Marla Share, the claimant, appeals from an order of the Unemployment Compensation Board of Review which affirmed the decision of a referee denying claimant benefits.

The claimant was employed as the accounting director and director of administration by the Program for Exceptional People. Her immediate supervisor was one Kenneth Klein. In her capacity as an accountant, Mr. Klein directed her to make inaccurate entries in the employer's books. On one occasion, the employer sold some machinery for $1200.00. Mr. Klein directed the claimant to record the sale at $1000.00. She refused, however, and recorded the proper amount. On another occasion, the employer received an appropriation from the Commonwealth's General Services Administration of $7500.00 to purchase an oil tank. When Klein was able to purchase a tank for $7000.00, he directed the claimant to enter as the purchase price the amount appropriated by the Commonwealth.

Because of her misgivings over these incidents, the claimant approached members of the employer's audit committee which investigated the matter. While the matter was under review by that committee, and before any action was taken, claimant voluntarily terminated her employment.

[ 99 Pa. Commw. Page 121]

At the hearing before the referee, the claimant recounted the previously described incidents. At the time of the hearing, the audit committee had yet to reach a decision on the matter. The claimant presented the testimony of Joseph Jacobine, an attorney who served on the audit committee. He testified that, in his view, there was nothing illegal about the accounting practices because none of these monies were used personally by Mr. Klein; rather, the monies were used by the employer. Nonetheless, Mr. Jacobine opined that these practices were improper in an accounting sense in that all information should be accurately recorded for control purposes.

The referee denied benefits, holding that the claimant did not have cause of a necessitous and compelling nature to justify her voluntary termination. The Board affirmed. In its opinion, the Board reasoned that the claimant acted "precipitously" in resigning and should have waited until the audit committee made its decision. This appeal followed.

In a case involving a voluntary termination, the burden is upon a claimant to prove the existence of necessitous and compelling reasons justifying the termination. Ryan v. Unemployment Compensation Board of Review, 87 Pa. Commonwealth Ct. 465, 487 A.2d 1026 (1985). Where the party with the burden of proof has not prevailed before the fact finder, our review is limited to determining whether the factual findings are consistent, whether such findings can be sustained without a capricious disregard of competent evidence or whether an error of law has been committed. Bruder v. Unemployment Compensation Board of Review, 70 Pa. Commonwealth Ct. 9, 452 A.2d 288 (1982).

The claimant relies upon Zinman v. Unemployment Compensation Board of Review, 8 Pa. Commonwealth Ct. 649, 305 A.2d 380 ...


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