64 Pa. Commw. 639 | Pa. Commw. Ct. | 1982
Opinion by
This case arises out of an unemployment compensation claim filed by Nellie Adamski (Claimant) on May 4, 1980. The Office of Employment Security (Office) issued a decision denying benefits under the provisions of Section 402(b)(1) of the Unemployment Compensation Law (Act), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended. 43 P.S. §802(b)-(1) which provides in pertinent part:
An employe shall be ineligible for compensation any week —
(b)(1) In which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature....
Both the referee and the Unemployment Compensation Board of Review (Board) affirmed the Office’s determination denying benefits on the basis of §402(b)(l). Claimant now seeks review by this Court.
The only issue raised by Claimant is whether the Board erred in determining that Claimant voluntarily terminated her employment without cause of a necessitous and compelling nature within the meaning of §402(b)(l), and as a result, whether it erred in finding Claimant ineligible to receive unemployment compensation benefits. We hold that the Board did not err and accordingly affirm its order.
The Claimant was employed by Schott Optical (Employer) as a fixture loader from April 6, 1974 until May 2, 1980. She gave her Employer more than two weeks notice that she would be leaving her position on May 2, 1980. At the referee’s hearing, when asked “Did you retire?,” the Claimant testified “Yes.” Claimant explained she was 68 years old and felt she was entitled to retire. Both Claimant and her Employer testified that continuing work was available for Claimant if she desired to keep working. The Employer also stated that there was no set retirement age enforcement by their company.
In this case, the party with the burden of proof (Claimant) did not prevail below. Therefore, the Board’s findings of fact are binding on this Court if the findings are consistent with each other and the conclusions of law, and if they can be sustained without a capricious disregard of competent evidence. Pease v. Unemployment Compensation Board of Review, 40 Pa. Commonwealth Ct. 299, 397 A.2d 449 (1979) . In a case where an employee voluntarily terminates his employment, the court must determine if the claimant met his burden of proving that he did so for a cause of necessitous and compelling nature. Whether one had such cause to terminate employment is a legal conclusion subject to appellate review. McNeil v. Unemployment Compensation Board of Review, 51 Pa. Commonwealth Ct. 315, 414 A.2d 727 (1980).
In the case before us we find that the Board’s findings of fact are consistent with' each other and with the conclusions of law and that the Board has not capriciously disregarded competent evidence. By her own admission, Claimant stated that she voluntarily retired from her employment although continuing work was available for her if she decided to remain.
Order
And Now, this 22nd day of February, 1982, the order of the Unemployment Compensation Board of Review, No. B-186328 dated July 29, 1980, denying Nellie Adamski unemployment compensation benefits is hereby affirmed.
While it is true that a claimant’s physical disability may constitute a cause of a necessitous and compelling nature for leaving her employment, Deiss v. Unemployment Compensation Board of Review, 475 Pa. 547, 381 A.2d 132 (1977), we were unable to consider such a possibility since no corroborating evidence was presented below. We cannot on appeal consider evidence that was not presented below.