Gorski v. North Carolina Symphony Society, Inc.

PHILLIPS, Judge. In undertaking to decide these claims on grounds neither raised nor relied on in the proceedings appealed from, the Superior Court violated the fundamental rule that an appeal has to follow the trial. Grissom v. N. C. Department of Revenue, 34 N.C. App. 381, 238 S.E. 2d 311 (1977), disc. rev. denied, 294 N.C. 183, 241 S.E. 2d 517 (1978). The course of these claims had been inexorably set in the proceedings appealed from; it could not be changed thereafter. The basis for the claims as filed was not that the claimants had been temporarily laid off, but that their employment with the Symphony had been terminated and they were seeking other permanent full time employment. The evidentiary hearing before the Deputy Commissioner, in accord with the notice to which none of the parties objected, was devoted to only the following issue: “Whether the claimants’ [sic] are able to, [651] available for, and actively seeking work without undue restriction or limitation.” The forty-eight appellees who presented evidence all attempted to show to the Commission’s satisfaction that their employment with the Symphony was over and they were available for permanent employment elsewhere, as the law governing benefits requires; none contended that they were temporarily laid off and not available for permanent employment. The appellants, on the other hand, undertook to show that the appellees did not meet the “available for work” standard established by G.S. 96-13(a)(3), since they expected to continue working for the Symphony, which was already preparing for the next concert season, and their efforts to obtain employment were so limited that they could not be successful. The Commission’s decision, following the course the case had taken, was based on eleven findings of fact and numerous conclusions of law, all relating to the one issue raised; and in appealing therefrom, appellees stated for their only grounds that various of the findings were unsupported by evidence, and the conclusions of law that they were not genuinely attached to the work force and available for permanent full time work because of their continuing attachment to the Symphony and the limited market for their job skills were erroneous. Having gone that far on the course selected, the case could not be put on a different course by the Superior Court. In reviewing the decision of the Employment Security Commission, the Superior Court was functioning as an appellate court. As such, its office was limited to determining two things: first, whether there was evidence before the Commission to support its findings of fact, and, second, whether the facts so found sustain the conclusions of law and resultant decision. G.S. 96-15(h)-(i); In re Enoch, 36 N.C. App. 255, 243 S.E. 2d 388 (1978). It had no authority to make new findings, Employment Security Commission v. Paul’s Young Men’s Shop, Inc., 32 N.C. App. 23, 231 S.E. 2d 157, disc. rev. denied, 292 N.C. 264, 233 S.E. 2d 396 (1977), but was bound by all findings and conclusions properly made. In re Steelman, 219 N.C. 306, 13 S.E. 2d 544 (1941). To what extent, if any, the Superior Court undertook to review the decision of the Commission in the manner required, the record does not show. Since our own review of the record convinces us that the Commission’s findings of fact are all supported by evidence and sustain the conclusions and decision made, rather [652] than remand the matter for further proceedings, to the delay, inconvenience, and expense of the parties, we herewith vacate the order appealed from and remand to the Employment Security Commission for the reinstatement of its decision. Vacated and remanded. Judge Arnold concurs. Judge Becton dissents.