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MELLISSA D. FOX v. COMMONWEALTH PENNSYLVANIA (03/18/87)

decided: March 18, 1987.

MELLISSA D. FOX, 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 Mellissa D. Fox, No. B-242361.

COUNSEL

Ronald L. Russell, for petitioner.

Samuel H. Lewis, Assistant Counsel, with him, Paul E. Baker, Acting Deputy Chief Counsel, for respondent.

President Judge Crumlish, Jr., Judge Doyle, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 105 Pa. Commw. Page 8]

Mellissa D. Fox (Claimant) petitions for review of an order of the Unemployment Compensation Board of Review (Board) that affirmed a referee's determination denying Claimant unemployment compensation benefits pursuant to Sections 402(b) (voluntary quit without necessitous and compelling reasons) and 401(d)(1) (unavailability for suitable work) of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §§ 802(b), 801(d)(1). We affirm.

The referee found that Claimant had been employed by Kittanning Dairy Queen (Employer) as a counter clerk and that she quit her job because her doctor recommended that she not stand for more than one hour at a time, that she not lift over fifteen pounds, and that she avoid toxic fumes. Although not found as a fact by the referee, Claimant's medical restrictions were apparently due to her pregnancy, a fact apparently not in dispute. The referee also found that Claimant's doctor had not specifically told Claimant to quit her job but merely advised her of the above-noted limitations. Claimant presented a doctor's note to Employer as medical certification for an absence, but the note did not contain a list of the above-mentioned limitations. In addition, Claimant never explained her limitations to Employer.

[ 105 Pa. Commw. Page 9]

Instead, she merely quit on May 8, 1985 refusing, at the behest of her husband, even to finish out the week. The referee also found that continuing work was available to Claimant and that Claimant was not available for employment. Having found that Claimant had not informed Employer of the limitations placed upon her but, instead, had told Employer that her doctor had advised her to quit, the referee denied benefits. The Board summarily affirmed.

On appeal here Claimant asserts several errors. She contends that the referee capriciously disregarded the evidence in making his findings. The proper inquiry, however, is whether the findings of fact are supported by substantial evidence. Estate of McGovern v. State Employees' Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986). Claimant's argument that the findings are unsupported is totally lacking in merit. Claimant herself testified that her doctor would have permitted her to work until approximately three weeks before her due date of August 15, 1985 (N.T. p. 3), yet she terminated her employment on May 8, 1985. In addition, while she testified that she told Employer she had physical limitations, she never asserted that she had informed Employer what those limitations were. Furthermore, her failure to specify the limitations was also attested to by Employer's witness. Claimant also maintains that the Board violated Treon v. Unemployment Compensation Board of Review, 499 Pa. 455, 453 A.2d 960 (1982) by merely affirming the referee's decision without making its own findings. Treon, however, requires specific Board reasoning, not findings, only when the testimony before the referee is consistent and uncontradicted and the Board rejects the referee's findings. Neither of those criteria applies in the instant case and thus the Board was not required to give its own reasoning.

Claimant further asserts that the referee should have made certain that a note, purportedly from her doctor

[ 105 Pa. Commw. Page 10]

    advising her to quit, was placed into evidence. As we have previously stated, the referee's role is not that of advocate. Brennan v. Unemployment Compensation Board of Review, 87 Pa. Commonwealth Ct. 265, 487 A.2d 73 (1985). Therefore we decline to hold, as Claimant ...


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