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JAMES HACKENBERG v. COMMONWEALTH PENNSYLVANIA (03/26/87)

decided: March 26, 1987.

JAMES HACKENBERG, JR., 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 James Hackenberg, Jr., No. B-246962.

COUNSEL

Richard A. Holmes, for petitioner.

James K. Bradley, Assistant Counsel, with him, Clifford F. Blaze, 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.

Author: Blatt

[ 105 Pa. Commw. Page 98]

James Hackenberg (petitioner) petitions for review of an order of the Unemployment Compensation Board of Review (Board) which denied him benefits pursuant to Section 402(b) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. ยง 802(b) (voluntary termination

[ 105 Pa. Commw. Page 99]

    without cause of a necessitous and compelling nature).

The petitioner was employed by Overhead Door from December 19, 1983 until October 9, 1985 as a truck driver. On the morning of October 9, 1985, the petitioner was assigned a truck to make a delivery that evening and complained about its condition. He then stated that he "quit" and went home. The referee found that the petitioner quit his job without cause of a necessitous and compelling nature and the Board affirmed. This appeal followed.

The petitioner contends that the Board capriciously disregarded evidence, that its decision was unsupported by substantial evidence, and that the Board erred, as a matter of law, in finding that he voluntarily quit his job absent the requisite necessitous and compelling cause. Our scope of review, of course, is limited to determining whether or not constitutional rights were violated, an error of law was committed, or a necessary finding is unsupported by substantial evidence. Estate of McGovern v. State Employees' Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986). We must determine, therefore, whether or not there are adequate findings to support the conclusions, and whether or not those findings are supported by substantial evidence.

The petitioner argues that finding of fact number eight that the "Employer's equipment was in a safe and serviceable condition" is unsupported by substantial evidence because his uncontradicted testimony indicates that the equipment was unsafe. While it is true that the petitioner testified that he felt the equipment was unsafe, our review of the record indicates that he also testified in pertinent part as follows:

CL: The load was to go out that ...


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