Opinion
January 20, 1983.
Unemployment compensation — Inadequate findings — Remand.
1. When findings of fact in an unemployment compensation case are nonexistent or incomplete in areas crucial for a determination of whether an employer misrepresented job conditions and whether the employe voluntarily terminating employment is entitled to benefits so as to make proper appellate review impossible, the matter must be remanded. [276-7]
Submitted on briefs November 15, 1982, to Judges BLATT, WILLIAMS, JR. and CRAIG, sitting as a panel of three.
Appeal, No. 289 C.D. 1981, from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of John V. Fontana, No. B-191428.
Application with the Office of Employment Security for unemployment compensation benefits. Benefits denied. Applicant appealed. Benefits awarded by referee. Employer appealed to the Unemployment Compensation Board of Review. Benefits denied. Applicant appealed to the Commonwealth Court of Pennsylvania. Held: Order vacated. Case remanded.
Jeffrey W. Johasky, for petitioner. Francine Ostrovsky, Associate Counsel, with him Richard L. Cole, Jr., Chief Counsel, for respondent.
John V. Fontana (claimant) appeals here an order of the Unemployment Compensation Board of Review (Board) which reversed a referee's decision and denied benefits on the ground that the claimant had voluntarily quit his job without cause of a necessitous and compelling nature. Section 402(b) of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P. S. § 802 (b).
The claimant was employed as a sales director by Holiday Inn (employer), having begun his employment with a week of training in the banquet room of the hotel, working between ten and 12 hours per day. He did not finish his second week, however, because of what he considered physically impossible hours and because he felt that the employer was not producing the type of work conditions which had been initially promised. Although the Board did make a finding on this point, the referee characterized the employer's statements as a misrepresentation. After confronting the employer with his dissatisfaction concerning both the hours and the duties, the claimant stated "he would try it for another day", and the next day was his last day of employment at the hotel.
The claimant contends that he was promised that 90% of his time would be spent in the field. However, during his brief tenure, it appears that he remained within the hotel.
In a voluntary quit case, the burden of proving good cause lies with the claimant. See Ferry v. Unemployment Compensation Board of Review, 58 Pa. Commw. 154, 427 A.2d 716 (1981). And where, as here, the party with the burden of proof has not prevailed before the Board, our scope of review as to factual matters is limited to a determination of whether or not the Board's findings of fact can be sustained without a capricious disregard of competent evidence. Jackim v. Unemployment Compensation Board of Review, 63 Pa. Commw. 5, 437 A.2d 775 (1981).
We understand that the claimant's initial acceptance of a job offer raises a presumption of the suitability of the job. Spinelli v. Unemployment Compensation Board of Review, 63 Pa. Commw. 358, 437 A.2d 1320 (1981). And mere dissatisfaction with working conditions neither rebuts that presumption nor justifies voluntary termination. Id. The claimant must prove deception as to the conditions, Hazzard v. Unemployment Compensation Board of Review, 50 Pa. Commw. 620, 413 A.2d 478 (1980), or a substantial unilateral change in the employment agreement. National Aluminum Corp. v. Unemployment Compensation Board of Review, 59 Pa. Commw. 359, 429 A.2d 1259 (1981).
Effective appellate review of this case, however, is made impossible because of the sketchiness of the record below. There are areas where findings either do not exist or at best are incomplete. The terms of the contract for hire are not in the Board's findings. Although the Board's findings indicate that the claimant was not informed of his hours, its discussion notes that the claimant was advised that the job would entail an average of 60 hours per week. Obviously one of these statements is not correct. The Board makes no findings at all as to whether or not the claimant's allegations as to his health were believed or disbelieved, or as to whether or not the employer misrepresented the responsibilities of the job. In deciding against the claimant, the Board needed some evidence upon which to rely, but the record consists of only the claimant's testimony and some exhibits introduced by the employer, one of which, some notes taken by a case worker of a three-way telephone communication among the employer's representative, the claimant, and the case worker, is so poorly written so as to be illegible and incomprehensible.
The employer did not appear at the referee's hearing.
Given the glaring inconsistencies in the findings made and the failure of the Board to make necessary findings of fact on the determinative legal questions presented, it is impossible for this Court to review this case effectively. We must, therefore, vacate the Board's order and remand for further proceedings not inconsistent with this opinion. Spinelli.
ORDER
AND NOW, this 20th day of January, 1983, the order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby vacated and the case remanded for further proceedings consistent with this opinion.