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JERRIANNE S. KIRKWOOD v. COMMONWEALTH PENNSYLVANIA (05/12/87)

decided: May 12, 1987.

JERRIANNE S. KIRKWOOD, 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 Jerrianne S. Kirkwood, No. B-237560.

COUNSEL

John M. Close, for petitioner.

James K. Bradley, Associate Counsel, with him, Peter Layman, Acting Chief Counsel, for respondent.

Judges Doyle and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Doyle. Concurring Opinion by Judge Palladino.

Author: Doyle

[ 106 Pa. Commw. Page 93]

Jerrianne S. Kirkwood (Claimant) petitions for review of a decision of the Unemployment Compensation Board of Review (Board) affirming the referee's decision finding Claimant ineligible for benefits under Section 402(b) of the Unemployment Compensation Law (Law) (voluntary quit).*fn1 We affirm.

Claimant was employed as an office manager by Marylyn R. Curran, M.D. (Employer), a child psychiatrist, for a period of approximately five years prior to her last day of work. Claimant's duties included coordination of children services, billing, screening clients, and scheduling appointments. Claimant was also a patient of her Employer. A problem developed between Claimant and her Employer involving a pre-school enterprise in which Claimant was involved, but in which

[ 106 Pa. Commw. Page 94]

    her Employer decided she herself did not want to become involved. As a result of this problem, Claimant's duties were reduced and Employer required Claimant to account more fully for her time and activities while at work. This change in Claimant's work duties caused Claimant to feel "unwanted" by her Employer and, consequently, Claimant left her employment on October 4, 1984 in order to preserve her emotional well-being.

Claimant applied for unemployment compensation benefits and the Office of Employment Security determined that she was ineligible for benefits under Section 402(b) because she had voluntarily left her employment without a necessitous or compelling cause. This determination was affirmed by the referee after a hearing at which Claimant was the only witness. The Board affirmed, and this appeal followed.

Preliminarily, we must re-examine our scope of review because of the recent Pennsylvania Supreme Court decision in Estate of McGovern v. State Employees' Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986). Pursuant to Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704, we are directed to "affirm the adjudication unless [we] find that the adjudication is in violation of the constitutional rights of the appellant, or is not in accordance with law, or that the provisions of . . . [the Administrative Agency Law relating to practice and procedure] have been violated . . . , or that any finding of fact made by the agency and necessary to support its adjudication is not supported by substantial evidence." This standard clearly applies in cases where both parties have presented evidence, which was the situation in McGovern. But where, as here, the party with the burden of proof was the only party to present evidence, and she did not prevail before the agency, does the same substantial evidence test also apply because if there was no evidence to support

[ 106 Pa. Commw. Page 95]

    the party who did prevail, how then can there be substantial evidence to ...


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