THOMAS BRUNSON, Plaintiff-Appellant

vs.

BOARD OF REVIEW, OHIO, BUREAU OF EMPLOYMENT SERVICES, ET

AL, Defendant-Appellees

No. 8-122
COURT OF APPEALS, ELEVENTH APPELLATE DISTRICT, LAKE COUNTY, OHIO
Slip Opinion
March 9, 1981

COUNSEL

 

CHARLES G. DEEB, 9953 Johnnycake Ridge Road<, Mentor<, Ohio< 44060. ATTORNEY FOR APPELLANT.
Q. ALBERT CORSI, Assistant Attorney General, 615 West Superior Ave. 8th Floor, Cleveland<, Ohio< 44113. ATTORNEY FOR APPELLEES.

 JUDGES

 

HOFSTETTER, P. J., and COOK, J., Concur
 AUTHOR: DAHLING

 OPINION

 

 

 
This is an appeal from a judgment of the Court of Common Pleas, Lake County, wherein the court affirmed the decision of the Board of Review of the Ohio Bureau of Employment Services which denied appellant unemployment compensation benefits.

 

Appellant worked for Euclid Crane Company from February, 1979 until September 21, 1979, when he quit to take a job with H & H Industrial Company. He started with H & H on September 22, 1979 and quit on September 27, 1979. He then started with Industrial Vacuum Company on September 28, 1979 and was fired on October 28, 1979. The firing was determined to not disqualify appellant from receiving unemployment compensation.

 

The Board of Review's decision, which was affirmed by the court, was that appellant was not entitled to benefits since he did not work for three weeks or earn sufficient money at H & H. The fact he worked over three weeks and earned sufficient wages at Industrial Vacuum was held to be of no consequence. This is the issue presented by appellant, whether his employment at Industrial Vacuum can be used to qualify him for benefits.

 

Appellant's Assignment of Error is as follows:

 

1. TRIAL COURT ERRED BY DECLINING TO GRANT PLAINTIFF-APPELLANT UNEMPLOYMENT BENEFITS UNDER OHIO REVISED CODE SECTION 4141. 291 (a).

 

This Assignment of Error is with merit.

 

Appellant worked continuously after quitting Euclid Crane until he was fired by Industrial Vacuum. He worked at Industrial Vacuum for over three weeks and earned more than one and one-half times his average weekly wage.

 

Appellant clearly qualified for unemployment compensation benefits.

 

The appellee has attached five opinions to its brief. All of these can be easily distinguished since in those the claimant did not work for three weeks. In the case sub judice appellant did not work sufficiently long at H & H but he did at Industrial Vacuum.

 

We hold that R.C. 4141.291 does not foreclose appellant from using Industrial Vacuum to qualify.

 

R.C. 4141.291(a) states in pertinent part as follows:

 

. . . . an individual who voluntarily quits his work. . . commences such employment within seven calendar days and in such other employment works three weeks and earns wages equal to one and one-half times his average wage. . . shall remove the disqualification. . .",

 

The Board of Review erroneously concluded appellant started at Industrial Vacuum on October 5, 1979, whereas he in fact started on September 28, 1979. The only sworn testimony in the record is that of appellant. He stated he started on September 28, 1979 and that his first paycheck was received on October 5, 1979. Since appellant's testimony is not contradicted we can only conclude the Board made a mistake in using the October 5, 1979 date. Having used the wrong date it follows they reached the wrong decision. Had appellant not started at Industrial Vacuum until October 5th then he would not have met the seven calendar day requirement between H & H and Industrial Vacuum.

 

Appellee states as follows in its brief on page 3:

 

"In the case of Kilgore v. Board of Review, 2 Ohio App. 2d 69, 72 (1965), the Court in reversing the decision of the Common Pleas Court, stated, at pages 72 and 73:

 

. . . . . Neither the Common Pleas Court nor this court has any authority to substitute its judgment for that of the administrator or Board of Review. The court, acting in its appellate jurisdiction, is not the judge of the credibility of the witnesses. That is the function of the trier of the facts. If the decision is supported by credible proof, the finding may not be disturbed. What conclusion either the Common Pleas Court or this court might reach in an original hearing is an entirely different and immaterial matter. The determination of this factual question was within the province of the Board of Review."

 

This is not relevant since the only sworn testimony is that of Appellant. It follows the Board and the Court of Common Pleas has no other credible evidence on which to decide the case.

 

For the foregoing reasons, the judgment of the court is reversed and final judgment is entered for Appellant granting him unemployment benefits.

 DISPOSITION
 

Judgment Reversed