Gorski v. North Carolina Symphony Soc., Inc.

• Citation: 64 N.C.App. 649,308 S.E.2d 460
• Decision Date: 01 November 1983
• Docket Number: No. 8210SC478,8210SC478
• Parties: In the Matter of Paul S. GORSKI et al v. NORTH CAROLINA SYMPHONY SOCIETY, INC. and Employment Security Commission of North Carolina.
• Court: Court of Appeal of North Carolina (US)

Page 460

308 S.E.2d 460

64 N.C.App. 649

In the Matter of Paul S. GORSKI et al v. NORTH CAROLINA SYMPHONY SOCIETY, INC. and Employment Security Commission of North Carolina.

No. 8210SC478.

Court of Appeals of North Carolina.

Nov. 1, 1983.

Judith E. Kincaid, Raleigh, for plaintiffs-appellees.

Poyner, Geraghty, Hartsfield & Townsend by Marvin D. Musselwhite, Jr., and Cecil W. Harrison, Jr., Raleigh, for defendant-appellant N.C. Symphony Soc., Inc.

V. Henry Gransee, Jr., and Donald R. Teeter, Raleigh, for defendant-appellant Employment Sec. Com'n of N.C.,

PHILLIPS, Judge.

In undertaking to decide these claims on grounds neither raised nor relied on in the proceedings appealed from, the Superior Court violated the fundamental rule that an appeal has to follow the trial. Grissom v. N.C. Department of Revenue, 34 N.C.App. 381, 238 S.E.2d 311 (1977), disc. rev. denied, 294 N.C. 183, 241 S.E.2d 517 (1978). The course of these claims had been inexorably set in the proceedings appealed from; it could not be changed thereafter. The basis for the claims as filed was not that the claimants had been temporarily laid off, but that their employment with the Symphony had been terminated and they were seeking other permanent full time employment. The evidentiary hearing before the Deputy Commissioner, in accord with the notice to which none of the parties objected, was devoted to only the following issue: "Whether the claimants' [sic] are able to, available for, and actively seeking work without undue restriction or limitation." The forty-eight appellees who presented evidence all attempted to show to the Commission's satisfaction that their employment with the Symphony was over and they were available for permanent employment elsewhere, as the law governing benefits requires; none contended that they were temporarily laid off and not available for permanent employment. The appellants, on the other hand, undertook to show that the appellees did not meet the "available for work" standard established by G.S. 96-13(a)(3), since they expected to continue working for the Symphony, which was already preparing for the next concert season, and their efforts to obtain employment were so limited that they could not be successful. The Commission's decision, following the course the case had taken, was based on eleven findings of fact and numerous conclusions of law, all relating to the one issue raised; and in appealing therefrom, appellees stated for their only grounds that various of the findings were unsupported by evidence, and the conclusions of law that they were not genuinely attached to the work force and available for permanent full time work because of their continuing attachment to the Symphony and the limited market for their job skills were erroneous. Having gone that far on the course selected, the case could not be put on a different course by the Superior Court.

In reviewing the decision of the Employment Security Commission, the Superior Court was functioning as an appellate court. As such, its office was limited to determining two things: first, whether there was evidence before the Commission to support its findings of fact, and, second, whether the facts so found sustain the conclusions of law and resultant decision. G.S. 96-15(h)-(i); In re Enoch, 36 N.C.App. 255, 243 S.E.2d 388 (1978). It had no authority to make new findings, Employment Security Commission v. Paul's Young Men's Shop, Inc., 32 N.C.App. 23, 231 S.E.2d 157, disc. rev. denied, 292 N.C. 264, 233 S.E.2d 396 (1977), but was bound by all findings and conclusions properly made. In re Steelman, 219 N.C. 306, 13 S.E.2d 544 (1941).

To what extent, if any, the Superior Court undertook to review the decision of the Commission in the manner required, the record does not show. Since our own review of the record convinces us that the Commission's findings of fact are all supported by evidence and sustain the conclusions and decision made, rather than remand the matter for further proceedings, to the delay, inconvenience, and expense of the parties, we herewith vacate the order appealed from and remand to the Employment Security Commission for the reinstatement of its decision.

Vacated and remanded.

ARNOLD, J., concurs.

BECTON, J., dissents.

BECTON, Judge, dissenting.

In reviewing a decision of the Employment Security Commission, the superior court must "(1) determine whether there was evidence before the Commission to support its findings of fact and (2) decide whether the facts found sustain the Commission's conclusions of law and its resulting decision." Intercraft Industries Corp. v. Morrison, 305 N.C. 373, 376, 289 S.E.2d 357, 359 (1982); Employment Security Comm. v. Jarrell, 231 N.C. 381, 57 S.E.2d 403 (1950). I do not believe that the facts found in this case sustain the Commission's conclusions of law and decision. Believing further that the "group temporary layoff" issue was properly before the superior court and that the superior court properly executed its appellate function, I dissent.

N.C.Gen.Stat. § 96-15(i) (1981 & Supp.1981), which establishes the procedure for an appeal from the Commission to the Superior Court of Wake County, provides that the appealing party must file a statement of the grounds upon which review is sought and the particulars in which it is claimed that the Commission erred. The statute further provides: "In any judicial proceeding under this section the findings of the Commission as to the facts, if there is evidence to support them, and in the absence of fraud, shall be conclusive, and the jurisdiction of said court shall be confined to questions of law."

In their notice of appeal, claimants contended that the Commission's conclusions of law, that claimants were not genuinely attached to the labor force and available for permanent full-time employment because of (a) their continuing attachment to the Symphony and (b) the limited market for their job skills and experience, were erroneous. Their notice of appeal also raised constitutional issues. Questions of law were thus presented to the superior court.

Under N.C.Gen.Stat. § 96-13(a) (1981 & Supp.1981), an unemployed individual, to be eligible for benefits, must satisfy the Commission that (1) he has registered to work and thereafter has continued to report to the employment office; (2) he has made a claim for benefits; and (3) he is able to work and is available for work. The requirements of this statute have been amplified, however, by administrative regulations.

Pursuant to the authority granted by N.C.Gen.Stat. § 96-4(a) (1981 & Supp.1981), the Commission has made rules and regulations to administer the Employment Security Act. One of these regulations administering G.S. § 96-13 is Employment Security Comm.Reg. 10.16 (1981), which provides for a "constructive registration for work" in a group temporary layoff situation, which is defined in Employment Security Comm. Reg. 1.15 (1981) as a "temporary layoff involving twenty (20) or more workers." A temporary layoff is defined in Employment Security Comm. Reg. 1.24 (1981) as "a period of unemployment ocurring [sic] when one or more workers, because of lack of work during a payroll week as established by the employer, are partially or totally unemployed but are retained on...