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DARREN J. THOMAS v. COMMONWEALTH PENNSYLVANIA (06/22/89)

decided: June 22, 1989.

DARREN J. THOMAS, PETITIONER,
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT. BRADLEY W. PEARSON, PETITIONER, V. COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT. TIMOTHY L. BRADLEY, PETITIONER, V. COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT. SCOTTIE K. EDDY, PETITIONER, V. COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT. RICHARD J. HAGADONE, PETITIONER, V. COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT. LOGAN M. WESTON, PETITIONER, V. COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



PETITION FOR REVIEW (UNEMPLOYMENT COMPENSATION).

COUNSEL

Gerald Sullivan, Northwestern Legal Services, Meadville, for petitioner.

Clifford F. Blaze, Depty. Chief Counsel, Harrisburg, Maribeth Wilt-Seibert, Asst. Counsel, for respondent.

Crumlish, Jr., President Judge, Colins, J., and Narick, Senior Judge.

Author: Crumlish

[ 127 Pa. Commw. Page 61]

Darren Thomas, Bradley Pearson, Timothy Bradley, Scottie Eddy, Richard Hagadone and Logan Weston, petitioners, respectively appeal six Unemployment Compensation Board of Review orders, each of which affirmed the referee and denied benefits. Section 402(b) of the Unemployment Compensation Law; 43 P.S. § 802(b).*fn1 We affirm.

Petitioners were employed by Hazlett Tree Service (Hazlett), clearing tree limbs from utility power lines. Hazlett's work sites are by nature temporary and petitioners had each been required to travel long distances to various job sites. When petitioners were assigned to a new, more distant work site, they refused and terminated their employment. Both the referee and the Board determined that petitioners voluntarily quit without cause of a necessitous and compelling nature.

Petitioners initially contend that by deleting certain of the referee's fact findings in several of its decision, the

[ 127 Pa. Commw. Page 62]

Board disregarded essential fact findings based on uncontradicted testimony in violation of our Supreme Court's holding in Treon v. Unemployment Compensation Board of Review, 499 Pa. 455, 453 A.2d 960 (1982). The Board responds that Treon is distinguishable because, there, the Board deleted a key fact-finding reversing the referee's decision. In this case, the Board maintains it has merely omitted nonessential findings in affirming the referee's conclusions that petitioners did not have necessitous and compelling cause to quit. While we find no authority in Treon limiting its application to Board reversals of a referee's decision, considerations of materiality and weight arise when the Board exercises its role as ultimate fact finder. Here, the Board has not disregarded uncontradicted findings on petitioners' commuting problem but in its conclusion has given greater weight to the findings that they failed to investigate the possibility of temporary lodgings at the job site*fn2 or arrange for car-pooling with other employees.

Petitioners further argue that, contrary to the Board's findings of fact, they were not aware that the job would require extensive travel to various job sites. Regardless of whether the extent of traveling was stated at the time of Pearson's hire, Petitioners' lengthy employment with Hazlett*fn3 indicates that they had acknowledged and acquiesced in these employment conditions. See Cardwell v. Unemployment Compensation Board of Review, 77 Pa. Commonwealth Ct. 210, 465 A.2d 145 (1983). The testimony of Hazlett's witness, further establishes the temporary and transient nature of Hazlett's business by indicating that a

[ 127 Pa. Commw. Page 63]

    particular job could begin at one location and end fifty to 100 miles away and that ...


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