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WILLIAM S. HASELY v. COMMONWEALTH PENNSYLVANIA (01/23/89)

decided: January 23, 1989.

WILLIAM S. HASELY, 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 William S. Hasely, No. B-264768.

COUNSEL

Anthony J. Kosciuszko, for petitioner.

Maribeth Wilt-Seibert, Assistant Counsel, with her, Clifford F. Blaze, Deputy Chief Counsel, for respondent.

Judges Doyle and McGinley, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge McGinley.

Author: Mcginley

[ 123 Pa. Commw. Page 46]

William S. Hasely (Hasely) appeals from a decision of the Unemployment Compensation Board of Review (Board) affirming a decision of the Referee denying him benefits pursuant to Section 402(b) of the Pennsylvania Unemployment Compensation Law (Law)*fn1 due to voluntarily leaving work without cause of a necessitous and compelling nature. We affirm.

Hasely was last employed by Pilot Freight Company (Employer) as a dock supervisor. The Board made the following Findings of Fact:

1. The claimant was last employed by Pilot Freight Company [Employer] for one year as dock supervisor at a weekly salary of $550.00. His last day of work was November 27, 1987.

[ 123 Pa. Commw. Page 472]

. At time of hire, the claimant was informed that he could expect to work no less than fifty hours per week.

3. From November of 1986 until May 22, 1987, the claimant worked from 2:00 p.m. until 12:00 midnight five nights per week.

4. In May of 1987, the claimant was transferred from the position of outbound supervisor to inbound supervisor.

5. At the time of this transfer, the claimant's hours of work were changed from 10:00 p.m. until 6:00 a.m., Monday thru [sic] Thursday and on Sundays from 6:00 p.m. or 7:00 p.m. until 6:00 a.m., depending on the freight flow.

6. In November of 1987, the claimant was informed of a proposed further change in his hours of work from 9:00 p.m. until 7:00 a.m. Sunday thru [sic] Thursday.

7. As a result of this change, the claimant would not be required to start earlier on Sundays.

8. The claimant voluntarily terminated his employment because he was dissatisfied with the change in his hours of work.

9. Continuing work was available to the claimant had he desired to remain employed.*fn2

The Office of Employment Security (OES) denied Hasely's application for unemployment compensation benefits based on Section 402(b) of the Law. Following a hearing the Referee issued a determination affirming the OES's denial of benefits. The Board issued a Decision and Order affirming the Referee and denying benefits. Hasely filed a Request for Reconsideration from the Board's decision which request the Board denied. Hasely

[ 123 Pa. Commw. Page 48]

    timely appealed to this Court from the Board's original order.

Hasely contends that certain of the Board's findings were not supported by substantial evidence and that the Board erred as a matter of law by concluding that Hasely did not have a necessitous and compelling reason to voluntarily terminate his employment, and that the Board erred by failing to make a specific credibility determination. Our scope of review is limited to determining whether the findings of fact are supported by substantial evidence, whether any error of law was committed or whether any constitutional rights have been violated. Estate of McGovern v. State Employees' Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986).

Hasely does not specify the Findings of Fact which he claims are not based on substantial evidence, but the gist of his argument concerns the Board's failure to find that he was required to work two additional hours per day with no increase in pay, and that the Board erred by finding that he was hired with the understanding that he would be required to work no less than fifty hours per week.

Hasely's testimony concerning the number of hours he worked per week both coincides with and contradicts the Board's findings. Hasely testified that his original work hours were from 2:00 p.m. until 11:00 p.m., five days per week,*fn3 for a forty-five hour work week. Employer's witness, Thomas Ray (Ray), Terminal Manager, testified that Hasely's original hours were from 2:00 p.m. until ...


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