Opinion
No. 1915 C.D. 2011
05-22-2012
Dorothy A. Kurpat, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
Dorothy A. Kurpat ("Claimant"), pro se, petitions for review of the August 30, 2011 decision and order of the Unemployment Compensation Board of Review ("Board"), denying her claim for benefits. The Board affirmed the decision of the referee ("Referee") that Claimant was ineligible for benefits under Section 402(b) of the Unemployment Compensation Law ("Law") because she voluntarily quit her job without cause of a necessitous and compelling nature. Concluding that the Board did not err, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(b). Section 402(b) provides, in relevant part, that "[a]n employe shall be eligible for compensation for any week... [i]n which his employment is due to voluntarily leaving work without cause of a necessitous and compelling nature." Id.
Claimant was employed full-time as Director of Human Resources at Brookmont Healthcare Center ("Employer") in Effort, Pennsylvania, from September 2004 until March 11, 2011, with a final rate of pay of $45,000 per year. (Record Item No. 9, Referee's Hearing, Transcript of Testimony ("T.T."), at 1-2.) In mid-January 2011, Claimant gave Employer notice that in seven weeks she would be resigning from her position in order to relocate to Linden, New Jersey, to live with her son. (Record Item No. 10, Referee's Decision, Findings of Fact ("F.F.") ¶ 3.) Claimant applied for benefits via the internet on March 13, 2011, citing "personal" reasons for leaving her employment, and explained that she "discussed it with the owners, the commute was too far." (Record Item No. 2, Internet Initial Claims.)
After the Scranton, Pennsylvania job center denied Claimant's application for benefits, Claimant appealed, and the Referee conducted a telephonic hearing at which Claimant was the only participant. Claimant testified that she "was having trouble" with her husband, had "nowhere to go," and "had to get out of the house, so I came to my son's." (Record Item No. 9, Referee's Hearing, T.T. at 2.) The Referee subsequently affirmed the job center's determination, concluding that Claimant's reasons for relocating were of a personal nature and not compensable under Section 402(b) of the Law.
Claimant appealed to the Board, which concluded that based upon the testimony and evidence provided, Claimant made a personal decision to leave her home and relocate to her son's home in New Jersey, and failed to "credibly demonstrate with sufficient specificity that she exhausted all possible options and explored alternatives before moving to New Jersey". (Record Item No. 12, Board's Decision.)
A claimant seeking benefits after voluntarily quitting her job has the burden to demonstrate real and substantial pressure to terminate employment that would compel a reasonable person under similar circumstances to act in the same manner. Dopson v. Unemployment Compensation Board of Review, 983 A.2d 1282 (Pa. Cmwlth. 2009). The claimant must further demonstrate that she acted with ordinary common sense and made a reasonable effort to preserve her employment. First Federal Savings Bank v. Unemployment Compensation Board of Review, 957 A.2d 811 (Pa. Cmwlth. 2008), appeal denied, 601 Pa. 685, 970 A.2d 1148 (2009). Whether or not a claimant has a compelling and necessitous cause for voluntarily terminating employment is a question of law subject to this Court's review. Dopson.
On appeal, Claimant argues that the Board premised its decision that she was ineligible for benefits on its misapprehension that she relocated to New Jersey prior to resigning her position, and voluntarily accepted a two-hour commute without exhausting all possible alternatives; she avers that a statement by the Board in its August 30, 2011 decision and order that "[h]aving moved and accepted the commuting distance, the claimant cannot now reasonably complain..." indicates a failure on the part of the Board to recognize the necessary and compelling reasons that caused her to quit her job. In fact, Claimant avers, she gave seven weeks notice in order to permit Employer to find a replacement and allow time for her to train such replacement; she could neither afford local housing nor could she commit to the two hour commute each way. (Brief of Petitioner, at 11-12.)
Our scope of review is limited to determining whether constitutional rights were violated, whether the adjudication is in accordance with the law or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704. --------
Sub judice, the Board found, inter alia, that Claimant had been experiencing difficulty with her disabled husband, and could no longer reside in the same house; that Claimant looked into renting apartments near Employer but decided they were too expensive; that Claimant had no family in the area, and decided to move in with her son; that Claimant commuted to Employer two hours away; and that she discussed her problems with Employer, and told Employer she could not continue the long commute. (Record Item No. 12, Board's Decision, Findings of Fact ("F.F.") ¶¶ 2-3, 5-7.) All of these facts were supplied by Claimant in her colloquy with the Referee:
Claimant: I had nowhere to go. I had to get out of the house, so I came to my son's. I had to give seven weeks notice to Brookmont so they could find coverage for me...and I was trying to do the commute, two hours each way. I just couldn't do it. You know, my car, I was having trouble with my car. I really had no choice. I had to leave Pennsylvania...
Referee: ...you traveled two hours each way before relocating to New Jersey to live with your son?
Claimant: Well, I did move to my son's in March and I, you know, at the end of January, February. The end of February I moved here and I was commuting to Brookmont...It was, I couldn't do it, I just couldn't do it. And I spoke with the owners and they even agreed with me. They said Dottie two hours each way [sic].
Referee: So is there any other reason other than being separated from your husband and - did you consider finding an apartment or something in the area?
Claimant: Couldn't afford it. The bills are out of control. My husband is disabled and he's on Social Security. I'm not heartless, so I certainly help him, but I can't live there...I just couldn't do it. Every place I looked at was $800 and $900 a month and I just couldn't make it.(T.T. at 2-3.)
In Bacon v. Unemployment Compensation Board of Review, 491 A.2d 944, 946 (Pa. Cmwlth. 1985), this Court stated "we do not believe the [Act] is intended to provide benefits to one who quits his or her job when other reasonable alternatives existed which would allow the claimant to attempt to rectify the problems while still maintaining employment." The Board determined that Claimant did not credibly demonstrate with sufficient specificity that she had exhausted all possible options before deciding to move to New Jersey. Questions of credibility and evidentiary weight are properly left to the Board, and the Board is free to reject even uncontradicted testimony. Rosenberger v. Unemployment Compensation Board of Review, 376 A.2d 1018 (Pa. Cmwlth. 1977). The Board determined further that Claimant failed to credibly establish that she made a reasonable attempt to maintain her employment. Claimant's testimony was limited to her statements that due to marital difficulties, she could no longer live with her spouse, who is the sole owner of the house, and due to the fact that he is disabled and she helps him, her available resources for alternative housing were limited, and the only feasible option for her was to move into her son's home in New Jersey where she could receive family support. (Brief of Petitioner, at 11-12; Record Item No. 5, Claimant's Petition for Appeal from Determination, at 2B.) Claimant testified generally that she was having trouble with her spouse, but provided no details as to the nature of the trouble. In Lee Hospital v. Unemployment Compensation Board of Review, 637 A.2d 695 (Pa. Cmwlth 1994), where claimant's testimony concerning her domestic difficulties consisted of statements that she was going through "ex-marital problems" and that she had been harassed by her husband, with no further details, this Court found no cause of a necessitous and compelling nature for her voluntary termination.
This Court has established that, in considering a claimant's decision to leave employment, we must determine whether such decision is necessitated by actions beyond her control or rather brought about by a purely personal preference. Schechter v. Unemployment Compensation Board of Review, 491 A.2d 938 (Pa. Cmwlth. 1985). Here, the Board concluded that Claimant's reasons for tendering her resignation in order to relocate to New Jersey were personal, and the Board did not find credible Claimant's assertions that she investigated all options prior to moving, in an attempt to preserve her employment. Accordingly, we affirm the order of the Board.
/s/_________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 22nd day of May, 2012, the order of the Unemployment Compensation Board of Review in the above-matter is affirmed.
/s/_________
JAMES GARDNER COLINS, Senior Judge