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CARMEN LOPEZ CRUZ v. COMMONWEALTH PENNSYLVANIA (10/07/87)

decided: October 7, 1987.

CARMEN LOPEZ CRUZ, 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 Carmen L. Cruz, No. B-249897.

COUNSEL

Carmen Lopez Cruz, petitioner, for herself.

James K. Bradley, Assistant Counsel, with him, Clifford F. Blaze, Deputy Chief Counsel, for respondent.

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

Author: Macphail

[ 110 Pa. Commw. Page 118]

Claimant Carmen Cruz appeals an order of the Unemployment Compensation Board of Review (Board) which affirmed a referee's decision denying her benefits under Section 402(b) of the Unemployment Compensation Law (Law),*fn1 43 P.S. § 802(b), and assessing a fault overpayment pursuant to Section 804(a) of the Law, 43 P.S. § 874(a). We affirm in part and reverse in part.

Claimant worked as a sewing machine operator for Chelle Sportswear (Employer) until December 11, 1985. As found by the referee, Claimant voluntarily terminated her employment on that date to move home to Puerto Rico with her disabled husband. Claimant received unemployment compensation benefits for the week ending January 11, 1986 in the amount of $76.

On February 26, 1986, a Notice of Determination of Overpayment of Benefits was sent to Claimant informing her that she was ineligible for benefits based on her voluntary quit and that she must repay the $76 due to the fact that she had indicated "lack of work" on her claim form as the reason for her termination.

[ 110 Pa. Commw. Page 119]

Claimant appealed the determination, and a telephonic hearing was held on April 4, 1986. The referee subsequently affirmed the determination, concluding that Claimant voluntarily terminated her employment without cause of a necessitous and compelling nature under Section 402(b), and that she received a fault overpayment subject to repayment under Section 804(a). The Board affirmed the referee's decision and Claimant now appeals to this Court.

On appeal, Claimant argues that the referee erroneously denied her benefits because she left her employment due to lack of work and not voluntarily. In so arguing, Claimant relies on a "To whom it may concern" letter*fn2 from her Employer which states: "I laid Carmen M. Cruz off, as at the time I did not have to [sic] much work. I forgot to tell my payroll clerk and she filled out the papers that she quit." Unfortunately, this letter was never made a part of the record below but is merely attached to Claimant's brief for our review. We are, therefore, unable to consider the document in our disposition of Claimant's appeal. Pa. R.A.P. 1921.

We are, furthermore, unpersuaded by Claimant's argument that the failure of the Office of Employment Security to conduct an investigation to obtain evidence of her reason for termination deprives her of due process of law. Claimant bears the burden of proving the right to compensation and if she asserts that her separation was not due to a voluntary termination, she bears the burden of proving that as ...


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