Onuska v. Commonwealth, Unemployment Compensation Board of Review

Opinion by

Judge Williams, Jr.,

This case comes before the Court on a claimant’s appeal of a determination of the Unemployment Compensation Board of Review (Board) that she was not entitled to benefits under Section 402(b)(1) of the Unemployment Compensation Law (Act)¹ because she failed to prove that her voluntary termination was caused by necessitous and compelling reasons. We affirm.

The findings of the referee² indicate that claimant had been employed for slightly more than four years as a dental assistant when she was placed on probation for deteriorating work performance. About six weeks later she resigned, alleging (1) that her employer was performing unnecessary dental procedures on welfare patients, and (2) that he was billing the Commonwealth for services he had not provided. These activities had been going on during the entire period of her employment.

The referee also found that the claimant was not qualified to judge whether the controversial procedures were necessary or not, and that she was not involved in the alleged overb'illing. Summarizing claimant’s testimony, the referee went on to “find” that

the claimant voluntarily terminated her employment for the alleged reason she no longer wanted to be involved in the alleged unnecessary dental work which was allegedly being performed by her employer and the alleged illegal activities. .. .

Claimant relied on Zinman v. Unemployment Compensation Board of Review, 8 Pa. Commonwealth Ct. 649, 305 A.2d 380 (1973), in arguing that legal and moral pressures compelled her to resign. However, we find that Zinman, although relevant, is not indistinguishable from the case presently before us.

Our scope of review

in the absence of fraud, is confined to questions of law and a determination of whether the findings of the Unemployment Compensation Board of Review are supported by the evidence, leaving to the Board questions of credibility and weight of the evidence and giving to the prevailing party the benefit of any favorable inferences which can reasonably and logically be drawn therefrom. (Emphasis omitted.)

Horace W. Longacre, Inc. v. Unemployment Compensation Board of Review, 12 Pa. Commonwealth Ct. 176, 178, 316 A.2d 110, 111 (1974).

Our review of the record indicates that much of the evidence supporting the contested findings of fact can be found in the testimony of the claimant herself, who admitted that she had not been trained to recognize dental decay, and that her training was “for putting in fillings and answering the phone.”³ A significant⁴ colloquy between claimant and her own lawyer, at the hearing before the referee was:

Q C/L: Do you feel that the Commonwealth of Pennsylvania was being charged for services that were, in fact, not performed?

AC: I wasn’t even concerned about that. I was concerned about the patients.

Q C/L: Okay. We covered the patients. Do you feel that the State had been charged for services which were not rendered?

AC: Yes:

Q C/L: And what was your reason

A C: Well, they were rendered but not that I felt they were properly rendered. But I don’t know to my knowledge if Doctor Sakol would send in something that wasn’t done. But, you know, as far as what he did, some of that I felt was improper.

The testimony of the employer concerning the claimant’s probationary status supports the finding concerning the deterioration in claimant’s performance on the job. He also testified that the guidelines to which claimant objected were those which had been in effect for the preceding four years.

Since our examination of the record establishes that the findings are supported by competent evidence, we turn to the referee’s analysis of the applicable law. The referee properly distinguished this case from Zinman, supra, since in that case the illegal procedures were newly instituted, and that claimant promptly objected to them.

This Court certainly does not condone the employer’s billing practices with regard to welfare patients. However, it cannot, conversely, condone the use of the unemployment compensation system to assuage the conscience of an employee whose moral compulsions were awakened by the institution of a quota system which the bookkeeper⁵ characterized as not “working out quite fairly” between the dental assistants.

Concerning claimant’s allegation that her employer performed unnecessary dental procedures on welfare patients, we hold that the negative opinion of one untrained in the area of complaint will not sustain the burden of proving necessitous and compelling cause to terminate the employment relationship.

Order affirmed.

Order

And Now, this 19th day of April, 1982, the order of the Unemployment Compensation Board of Review, entered March 17,1980, to No. B-182062, by which the Board denied benefits, is hereby affirmed.

This decision was reached prior to the resignation -of Judge Mencer.

1 Act of December 5, 1936, Second Ex. Seas., P.L. (1937) 2897, 09 amended, 43 P.S. §751 et seq.

2 Although the Board is the ultimate finder of fact, since the Board here affirmed the referee’s decision without further discussion. our analysis of the reasoning will, perforce, be referenced to the referee’s decision.

3 Of. Finding No. 5.

4 This colloquy directly refutes claimant’s contention before this Court that her voluntary termination was prompted by the pressures of legal duty, her moral convictions and her justifiable fear of implication in what she honestly believed was criminal activity,

5 The bookkeeper was, herself, unaffected by the institution of the quota system, since it was applicable only to the dental assistants. The testimony establishes that once a set quota of patients had been processed on the one weekday set aside for welfare patients, one assistant could go home. Bach week they would alternate. Apparently one girl went home considerably earlier than the other during the two weeks the system was operable,