Gioia v. Unemployment Compensation Bd. of Review

• Decision Date: 26 June 1995
• Citation: 661 A.2d 34
• Parties: Anthony C. GIOIA, Petitioner, v. UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, Respondent.
• Court: Pennsylvania Commonwealth Court

Page 34

661 A.2d 34

Anthony C. GIOIA, Petitioner, v. UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, Respondent.

Commonwealth Court of Pennsylvania.

Submitted on Briefs May 12, 1995.

Decided June 26, 1995.

Anthony C. Gioia, petitioner, for himself.

James K. Bradley, Asst. Counsel and Clifford F. Blaze, Deputy Chief Counsel, for respondent.

Before PELLEGRINI and FRIEDMAN, JJ., and RODGERS, Senior Judge.

RODGERS, Senior Judge.

Anthony C. Gioia (Claimant) petitions for review of an order of the Unemployment Compensation Board of Review (Board) that affirmed a referee's decision denying benefits to Claimant. We affirm.

For seventeen months Claimant was employed as a door builder for Heritage Custom Kitchens (Employer) until his last day of work on September 12, 1994. The Office of Employment Security (OES) disapproved Claimant's application for unemployment benefits, concluding that Claimant's voluntary quit was without cause of a necessitous and compelling nature pursuant to Section 402(b) of the Unemployment Compensation Law (Law). ¹ The OES reported that Claimant's reason for quitting was based on a dissatisfaction with Employer's management style. On appeal, the referee affirmed the OES' determination, indicating that Claimant "overreacted to what he [Claimant] regarded as unjust criticism on the part of employer." Referee's decision, p. 2.

Claimant appealed to the Board, which conducted a de novo review of the record to ensure that Claimant was afforded a full and fair hearing. The Board's pertinent findings of fact are as follows:

2. The claimant had two performance ratings by the employer, both of which were above average.

3. The claimant bid on a new job within the plant, received it based upon merit and began to work on January 17, 1994.

4. The employer had no formal training program and all of the training was 'on-the-job.'

5. On May 13, 1994, the claimant was taken aside by the general superintendent and was told the quality of his work was unsatisfactory and there had been complaints.

6. The claimant felt this criticism was unjust and he felt demoralized by it.

7. Following the May 13, 1994 incident, the claimant's relationship with the employer, particularly his supervisor, deteriorated further.

8. The claimant applied to the Human Resources Department for a transfer, which was denied, but a meeting was held in order to discuss the problem.

9. The claimant felt that there was no satisfactory resolution as a result of the meeting.

10. The claimant was assigned a sanding job which the employer states was a normal rotational alternative, but which the claimant considered to be menial.

11. The claimant submitted a letter of resignation.

12. Claimant was not mistreated, harassed or otherwise discriminated against by employer.

13. The employer suggested another attempt to resolve the matter but the claimant declined.

14. Continuing work was available for the claimant at Heritage Custom Kitchens.

Board's decision, pp. 1-2. Based upon these findings, the Board affirmed the referee's decision denying benefits to Claimant. The Board specially noted its de novo review of the entire record because of Claimant's allegations of improper and unprofessional behavior on the part of the referee.

On appeal, ² Claimant, proceeding pro se, raises the following issues for our review: (1) whether a complete and fair review was conducted by the Board in light of Claimant's contentions concerning the referee's behavior; and (2) whether the circumstances surrounding Claimant's leaving employment meet the compelling and necessitous standard of the Law.

Claimant first argues that he was prejudiced by the referee's inattention which is documented in the record. He further complains that he has not received a satisfactory explanation as to the lack of impact the referee's decision has on the outcome of his case.

In response, the Board cites Section 504 of the Law, 43 P.S. § 824, which provides in part that:

The board shall have power, on its own motion, or on appeal, to remove, transfer, or review any claim pending before, or decided by, a referee, and in any such case and in cases where a further appeal is allowed by the board from the decision of a referee, may affirm, modify, or reverse the determination or revised determination, as the case may be, of the department or referee on the basis of the evidence previously submitted in the case, or direct the taking of additional evidence. (Emphasis added.)

The language in Section 504 provides for the review by the Board of the evidence submitted before the referee. When the Board makes its own findings of fact, it is the Board's findings, not the referee's, that are subject to our review. Viglino v. Unemployment Compensation Board of Review, 105 Pa.Commonwealth Ct. 616, 525 A.2d 450 (1987). The Board itself need not hold a hearing. Furthermore, the law is well settled that the Board is the ultimate fact finder in unemployment cases. Sprague v. Unemployment Compensation Board of Review, 167 Pa.Commonwealth Ct. 184, 647 A.2d 675 (1994). As such, it is within the Board's power to assess the credibility of the testimony presented and to resolve evidentiary conflicts. Id.

Here, the Board reviewed all evidence presented, including Claimant's testimony wherein he questions the referee's alertness. Particularly, because Claimant accused the referee of falling asleep during testimony, the Board carefully reviewed the entire proceedings, determining that Claimant "was afforded a full and fair hearing at which his rights were protected." Board's decision, p. 2. Moreover, the Board contends that its findings of fact are based on substantial evidence. ³ We agree.

We next address Claimant's argument that his voluntary quit was for cause of a necessitous and compelling reason. He contends that he was coerced into handing in his resignation because of incompetent management.

A claimant whose unemployment is due to voluntary termination bears the burden of proving that such termination was for a necessitous and compelling reason; that...