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SYVILLA E. WOODS v. COMMONWEALTH PENNSYLVANIA (05/20/87)

decided: May 20, 1987.

SYVILLA E. WOODS, 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 Syvilla E. Woods, No. B-237275.

COUNSEL

Larry G. Cobb, for petitioner.

Jonathan Zorach, Associate Counsel, with him, Charles G. Hasson, Acting Deputy Chief Counsel, for respondent.

Judges MacPhail, Doyle and Barry, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 106 Pa. Commw. Page 222]

Syvilla E. Woods (Claimant) petitions for our review of an Unemployment Compensation Board of Review (Board) order which affirmed a referee's decision denying her benefits due to her voluntary quit without cause of a necessitous and compelling nature.*fn1 We affirm.

Claimant was employed as a teacher in the Pittsburgh School District until she submitted her written

[ 106 Pa. Commw. Page 223]

    resignation effective June 15, 1984. Claimant testified that her husband's employment contract with the Veterans Centers in Pittsburgh was to expire on August 30, 1984, that a similar job was available to him in Baltimore, Maryland and that he was advised by his supervisor that the opening in Baltimore would be "his best bet" in terms of having a secure job with the Veterans Administration. She further testified that her husband secured that position and commenced working in Baltimore on August 19, 1984. Claimant resigned from her position on August 24, 1984, effective June 15, 1984, so that she could accompany her husband and their two minor children to Baltimore.

Claimant applied to the Office of Employment Security (OES) for unemployment benefits on September 4, 1984 but was denied benefits after the OES determined that Claimant's voluntary quit was without cause of a necessitous and compelling nature. Claimant appealed and a hearing was conducted before a referee on November 8, 1984. At that hearing only the Claimant offered evidence. The referee, without making any specific credibility findings, also denied Claimant benefits finding that she had voluntarily quit her job without necessitous or compelling reasons. Claimant appealed to the Board which affirmed the referee's decision and adopted his findings without taking additional evidence.

Our Supreme Court has recently held that the proper standard of review in appeals taken from adjudications of a Commonwealth agency is that set forth in Section 704 of the Administrative Agency Law, 2 Pa. C.S. ยง 704. Estate of McGovern v. State Employes' Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986). That test requires that we affirm the agency's decision unless constitutional rights have been violated, an error of law committed, or necessary findings of fact are not supported by substantial evidence.

[ 106 Pa. Commw. Page 224]

In a case such as this, where the party with the burden of proof is the only party to present evidence before the referee and does not prevail, we are guided by the principles recently set forth by this Court in Kirkwood v. Unemployment Compensation Board of Review, 106 Pa. Commonwealth Ct. 92, 525 A.2d 841 (1987). There we held that if a burdened party failed to prevail below due to the legal insufficiency of the evidence, we will affirm the Board. If, however, it appears that the party failed to prevail due to lack of credibility and it is not ...


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