Break N Eat Corp. v. Commonwealth, Unemployment Compensation Board of Review

Opinion by

Judge Williams, Jr.,

This is an appeal by Break N Eat Corporation (employer) from a decision of the Unemployment Compensation Board of Review (Board), granting benefits to William Wiest after further consideration of the augmented record.

The claimant was last employed by Break N Eat for eight months as a full-time salesman; his last day of work was April 26, 1976. On that day, he was beaten by a management official and suffered three broken ribs, some loose teeth and other injuries. Claimant collected workmen’s compensation benefits for those injuries until December 20, 1976. Although claimant’s job was kept open for him until February 22,1977, he never returned to his employment. Claimant ’g subsequent application for unemployment benefits was initially denied by both the Bureau of Employment Security and the referee after a hearing at which claimant appeared without legal counsel. The denial of benefits to claimant was based on tbe provisions of Section 402(b)(1) of tbe Unemployment Compensation Law (Act)¹ following a determination by tbe referee that tbe claimant brought about bis unemployment by making no reasonable effort to notify tbe employer as to when claimant expected to be able to resume work. However claimant’s appeal to tbe Board of Review resulted in a remand bearing and a subsequent reversal of tbe referee’s decision. A further appeal by tbe employer and a second remand bearing pursuant to an order of this Court resulted in tbe final decision and order of tbe Board of Review from which tbe instant appeal is taken.

Based on tbe testimony taken at that final remand bearing and upon consideration of tbe entire augmented record, tbe Board found that tbe claimant abandoned bis employment because be bad been beaten by a management official on bis last day of work. The physical abuse of tbe claimant was tbe culmination of a verbal argument between tbe claimant and management officials concerning tbe claimant’s work performance and bis involvement with union activities. Tbe Board further found that tbe claimant did not return to work because be feared for bis health and safety.² On tbe basis of these facts, tbe Board concluded that tbe claimant bad acted in a totally reasonable manner and cannot be denied benefits under Section 402(b)(1) of tbe Act since be bad demonstrated a necessitous and compelling reason for voluntarily terminating Ms employment. We agree.

The instant ease presents a similar if not stronger example of “good cause” for leaving employment than the standards set forth in Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 378 A.2d 829 (1977).

In this case, claimant’s fear and apprehension were emotional reactions caused by the severe beating imposed upon him his last day of work. Such fear and apprehension were, therefore, grounded in reality. We believe it is reasonable to conclude that the beating incident can be deemed to have provided the claimant with real, not imaginary, substantial, not trifling reasons which “compelled” his termination of employment. Taylor, supra. We note, moreover, that while it is true claimant did not give details about the physical abuse nor mention his fear of returning to work until the first remand hearing, there is nothing in the record that reflects any inconsistencies in his testimony at either of the hearings.

Finally, our review of the record reveals that the findings and conclusions of the Board and thus their final decision and order are supported by the substantial record evidence. Affirmed.

Judge Palladino dissents.

Order

And Now, the 11th day of June, 1981, the decision and order of the Unemployment Compensation Board of Review at Decision No. B-147159-D, granting benefits to William Wiest, is affirmed.

This Opinion is filed to correct technical errors in the OpiMon of March 18, 1981, filed to the above docket number, and reflects no alteration in reasoning or result.

1 Act of December 5, 1936, Second Ex. Sess., P.L. (1937 ) 2897, as amended, 43 P.S. §802(b)(1). Under this section, a person is ineligible for compensation if his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature.

2 It must be noted that Break N Eat is a family corporation; and the management official responsible for beating the 'claimant was one of the family members.