Ellis v. Commonwealth

Dissenting Opinion by

Judge Barry:

I dissent. In this case, as the majority opinion points out, “the Unemployment Compensation Board of Review [Board] made factual findings of its own including that the claimant behaved as the employer described.” The referee had made no such finding concerning whether the claimant was, indeed, guilty of disruptive conduct. The Court then concludes “[t]he employer’s testimony was of course sufficient support for .the board’s finding.” I believe that the conclusion .of the majority is in error. It is true that our cases do say

the unemployment compensation referee acts merely as an agent for the Board and that the Board is the ultimate fact finding body empowered to resolve conflicts in evidence, to determine the credibility of witnesses, and to determine the weight to he accorded the evidence.

Unemployment Compensation Board of Review v. Wright, 21 Pa. Commonwealth Ct. 637, 639, 347 A.2d 328, 329 (1975) (emphasis added). This principle set forth in the opinion of Judge Blatt in Wright has been reiterated by her in Clowney v. Unemployment *342Compensation Board of Review, 54 Pa. Commonwealth Ct. 382, 421 A.2d 515 (1981). There are other eases, however, which indicate that credibility is strictly for the referee. In Florence v. Unemployment Compensation Board of Review, 51 Pa. Commonwealth Ct. 59, 61, 413 A.2d 784, 785 (1980) Judge Craig points out that “[cjase law consistently holds that the question of credibility is the province of the referee'. See Miller v. Unemployment Compensation Board of Review, 45 Pa. Commonwealth Ct. 539, 405 A.2d 1034 (1979).” To the same effect is Krimmel v. Unemployment Compensation Board of Review, 65 Pa. Commonwealth Ct. 134, 136, 442 A.2d 15, 16 (1982) in which Judge Crumlish states: “However, it is axiomatic that the resolution of conflicts in testimony and the issue of credibility ;are strictly the domain of the referee. Remaly v. Unemployment Compensation Board of Review, 55 Pa. Commonwealth Ct. 551, 423 A.2d 814 (1980).” Judge Crtjmlish’s opinion in the case of Jack v. Unemployment Compensation Board of Review, 68 Pa. Commonwealth Ct. 624, 626, 449 A.2d 883, 884 (1982) reiterates the principle that “[t]he credibility of witnesses and the weight to be given their testimony is for the referee to determine together with the resolution of conflicts in testimony. Yazevac v. Unemployment Compensation Board of Review, 60 Pa. Commonwealth Ct. 90, 430 A.2d 1207 (1981).”

I do not perceive that the case of Treon v. Unemployment Compensation Board of Review, 499 Pa. 455, 453 A.2d 960 (1982), cited by the majority, changes the rule enunciated in these cases. The Board may not be bound by the referee’s findings to the same extent that a court, under the classic case of Nanty-Glo v. American Surety Co., 309 Pa. 236, 163 A. 523 (1932), is bound to submit uncontradicted and perhaps in*343credible testimony to a jury,1 nevertheless the functions and responsibilities of a referee and the Board are different and must be honored. I do not think Treon destroys this distinction.

Section 504 of the Unemployment Compensation Law (Act), Act of December 5,1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §824 has been cited in some of the cases for the proposition that the Board is the ultimate fact finder. The statute in question provides as follows:

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. When any claim pending before a referee is removed or transferred to the board, the board shall afford the parties and the department reasonable opportunity for a fair hearing.

43 P.S. §824.

This 'Section of the Act, in my judgment, cannot be construed to give the Board the authority to assess credibility in .situations when it did not see the witnesses, hear them, or observe their demeanor.

In the present case, therefore, I find it impossible to justify the proposition that the Board, not hearing *344any of the testimony itself, could make a finding which is based entirely on the credibility of the witnesses.

I would, therefore, remand for additional factual findings.

The Supreme Court in Treon states: “If particular findings are inconsistent, incredible or unsupported by the evidence, then the Board must so indicate.” 499 Pa. at 461, 453 A.2d at 962.