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NANCY M. BLACKWELL v. COMMONWEALTH PENNSYLVANIA (03/02/89)

decided: March 2, 1989.

NANCY M. BLACKWELL, 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 Nancy M. Blackwell, No. B-262743.

COUNSEL

David B. Torrey, Thomson, Rhodes & Cowie, for petitioner.

No appearance for respondent Board.

Thomas M. Dailey, Goodwin, Procter & Hoar, and William D. Boswell, Boswell, Tintner & Piccola, for respondent, Wang Laboratories, Inc.

Judges Doyle and McGinley, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Doyle. Judge MacPhail did not participate in the decision in this case. Dissenting Opinion by Senior Judge Kalish.

Author: Doyle

[ 124 Pa. Commw. Page 11]

This is an appeal*fn1 by Nancy M. Blackwell (Claimant) from an order of the Unemployment Compensation Board of Review (Board) which affirmed a referee's determination and denied Claimant benefits pursuant to Section 402(b) of the Unemployment Compensation Law, (Law) Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b) (voluntarily quitting work without necessitous and compelling reasons).

The Board, although it affirmed the referee's decision, made its own findings on appeal. It determined that Claimant had been employed by Wang Industries (Employer) as a systems consultant and that her last day of work was June 9, 1987. The Board further determined that Claimant had filed a complaint in October 1986 with the Equal Employment Opportunity Commission alleging discrimination. Subsequent thereto Claimant believed that she was subject to harassment regarding her job performance by certain management personnel. Claimant then voluntarily terminated her employment

[ 124 Pa. Commw. Page 12]

    because she believed that this harassment adversely affected her health. The Board further found that she was not specifically advised by her psychologist to resign and that she did not communicate to Employer any health problems prior to her resignation. Additionally, the Board specifically found that Claimant had not, in fact, been harassed at work and further stated that even if Claimant's evidence were deemed credible she would not be entitled to benefits because she had not informed Employer of her health problem prior to resigning. Accordingly, it denied benefits on the basis of Section 402(b) of the Law. Claimant then appealed to this Court.

On appeal here Claimant contends first that the Board capriciously disregarded competent evidence*fn2 in concluding that she did not have necessitous and compelling reasons for quitting and second, that the Board erred in concluding that Claimant had not effectively notified Employer of any health problems. Where, as here, the burdened party*fn3 was the only one to present evidence*fn4

[ 124 Pa. Commw. Page 13]

    and that party did not prevail below, our scope of review is limited to determining whether the factfinder capriciously disregarded competent evidence and whether there has been a constitutional violation or an error of law. Russell v. Workmen's Compensation Appeal Board ...


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