89 Pa. Commw. 30 | Pa. Commw. Ct. | 1985
Opinion by
Thomas D. Kligge, Claimant, appeals here a decision and order of the Unemployment Compensation Board of Review (Board) denying Claimant unemployment compensation benefits pursuant to Section 402(b) of the Unemployment Compensation Law.
Claimant, who was last employed by John S. Vayanos Contracting Co. as a carpenter, argues on appeal that the Board capriciously disregarded the evidence
The Board found that Claimant requested and was granted a two-week vacation to travel to Massachusetts ; that when Claimant returned from his two-week vacation, he requested an additional week’s vacation to travel to Philadelphia to visit family; that the employer denied the request, and that Claimant replied that family was more important to him than his job and that Claimant went on vacation and did not return to work. The Office of Employment Security (OES) had approved the grant of benefits pursuant to Section 402(e) of the Law
Our review of the record indicates a classic conflict in the testimony of Employer and Claimant. The Board’s findings parallel the testimony of the Employer. Thus, the Board chose to believe the Employer. We may not alter the Board’s credibility determinations.
Parenthetically, although Claimant does not raise the issue in his brief, we are concerned with the shifting of the burden of proof at the Board level when it changed the basis for disqualification from 402(e) to 402(b) without obtaining the permission of the parties. In Gould v. Unemployment Compensation Board of Review, 77 Pa. Commonwealth Ct. 554, 466 A.2d 750 (1983), Judg’e Craig considered whether due process is denied when a leg'al basis for unemployment compensation disqualification, different from the basis originally utilized, is raised by the department for the first time upon appeal to the Board. Distinguishing Wing and King v. Unemployment Compensation Board of Review, 496 Pa. 113, 436 A.2d 179 (1981), in which the Supreme Court held that a newly devised disqualification basis, if not raised before reaching the Commonwealth Court, must be treated as waived, Judge Craig decided that this Court had not erred when it remanded the case for consideration of an issue previously raised only upon appeal to the Board. Judge Craig thought pertinent 34 Pa. Code §101.107
We find further support for Board’s action in Judge Blatt’s statement in White v. Unemployment Compensation Board of Review, 69 Pa. Commonwealth Ct. 196, 450 A.2d 770 (1982), “that due process does not require perfect procedure, but merely asks the question of whether or not the hearing given was fair.” 69 Pa. Commonwealth Ct. at 199, 450 A.2d at 772. Most obvious to all concerned in oases where the employer’s and claimant’s version of the circumstances of the claimant’s separation from employment are diametrically opposed is that the initial and most pressing question to be answered is whether a discharge occurred, or whether the separation was brought about at the employee’s initiative. Clearly, then, both parties are aware that the decision must be made and, therefore, they come to a hearing prepared to offer testimony in support of their version of the facts and to rebut the testimony of the opposing party. For only by eliciting the above testimony will the Board be able to pinpoint the pertinent provision of the Unemployment Compensation Law.
Accordingly, after hearing the testimony of both parties the Board determined that Claimant brought about his separation from employment. A claimant who becomes voluntarily unemployed bears the burden of proving that such termination was with cause of a necessitous and compelling nature. Borman v. Unemployment Compensation Board of Review, 12 Pa. Commonwealth Ct. 241, 316 A.2d 679 (1974). Because Claimant has advanced no alternative argument nor offered any evidence to prove be left his position for
Order
Now, April 26, 1985, the decision of the Unemployment Compensation Board of Review, No. B-217063, dated April 12, 1983, is hereby affirmed.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(b).
43 P.S. §802(e).
The OES misplaced information in the form of a letter received from the employer.
The Board’s order vacated the referee’s decision, which dismissed the employer’s appeal, and reversed the determination of the OES.