Summary
holding that claimant was not entitled to UC benefits when employer's location was moved from Philadelphia to Fort Washington
Summary of this case from Flick v. Unemployment Comp. Bd. of ReviewOpinion
Argued December 4, 1978
February 21, 1979.
Unemployment compensation — Voluntary termination — Cause of a necessitous and compelling nature — Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897 — Transportation difficulties — Child care problems — Domestic responsibilities.
1. An employe voluntarily terminating employment without cause of a necessitous and compelling nature is ineligible for benefits under the Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897, and transportation difficulties and child care problems created by a relocation of the employer's place of business do not constitute such a cause when the problems are not insurmountable but constitute simply an additional expense and inconvenience. [533-4]
2. A claimant who voluntarily terminates employment because of marital, filial or domestic reasons will remain eligible for unemployment compensation benefits if he establishes that such termination was for a necessitous and compelling cause. [534]
Argued December 4, 1978, before Judges WILKINSON, JR., DiSALLE and MacPHAIL, sitting as a panel of three.
Appeal, No. 965 C.D. 1977, from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Maureen C. Reagan, No. B-142694.
Application to the Bureau of Employment Security for unemployment compensation benefits. Application denied. Applicant appealed to the Unemployment Compensation Board of Review. Denial affirmed. Applicant appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Germaine Ingram, for appellant.
Charles G. Hasson, Assistant Attorney General, with him Gerald Gornish, Attorney General, for appellee.
Maureen C. Reagan (Claimant) quit her job with ITE Imperial Corporation (Employer) when Employer transferred the operations in which Claimant was engaged from Philadelphia to Fort Washington. The Bureau of Employment Security, referee and Unemployment Compensation Board of Review (Board) denied benefits, holding that Claimant was ineligible under the provisions of Section 402(b)(1) of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P. S. § 802(b)(1). We affirm.
An employee shall be ineligible for compensation for any week —
. . . .
(b)(1) [i]n which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature. . . .
Factually, Claimant, at the time of her resignation, was the mother of three children ages six, four and three. These children were in the care of a babysitter when Claimant worked at Employer's plant in Philadelphia for more than two years. Claimant contends that if she commuted to Employer's new location in Fort Washington, she would be required to leave home at 5:30 a.m. to get to work on time and that she would not be able to return home until 6 or 6:30 p.m. While she admitted that babysitters were available to sit during these hours, she testified that they would want $60 to $75 per week in compensation as compared to the $40 per week she was paying while she was working in Philadelphia. She said that $40 was all that she could afford to pay. She testified that she was also concerned about the time it would take her to get home should an emergency arise in connection with her children. She said that her husband could not take care of the children because he worked at different locations, had irregular hours and did not always live at home. Claimant said that she requested work at Employer's other locations in Philadelphia but Employer never replied to her request. Claimant does not deny that transportation was available to the new job site, but she contends that the additional expense and time involved and her concern for the care of her children constituted compelling and necessitous reasons for her decision not to work at Fort Washington.
Claimant earned $135.00 net.
One of the children suffered from allergies and bronchial asthma.
In Correa v. Unemployment Compensation Board of Review, 31 Pa. Commw. 13, 374 A.2d 1017 (1977), we held that before transportation problems can constitute justification for quitting, those problems must be so serious and unreasonable that they present a "virtually insurmountable problem" and that the burden is on the claimant to prove that her problems are insurmountable. Here, the referee and the Board found that Claimant did not meet that burden. We cannot say as a matter of law that the referee or the Board capriciously disregarded competent evidence in reaching their conclusion in that regard. There is no doubt that the necessary change in Claimant's schedule would have been inconvenient and that it would have been more expensive for Claimant to hold her job and pay a babysitter for longer hours. However, this does not amount to a "virtually insurmountable problem." In fact, the opposite is true. Claimant admits that she could have solved her problems but simply chose not to do so. This was her right, but now she must abide by the consequences of her decision.
Claimant also argues that since we declared Section 401(b)(2)(II) of the Act to be unconstitutional in Wallace v. Unemployment Compensation Board of Review, 38 Pa. Commw. 342, 393 A.2d 43 (1978), we should remand the case for further hearing in light of that decision. We note that there we said pertinently:
The eligibility for unemployment compensation of applicants who terminate their employment for marital, filial or domestic reasons must be determined under Section 402(b)(1); that is, each claimant must be afforded the opportunity to demonstrate that his termination was for a necessitous and compelling nature.
Id. at 351, 393 A.2d at 47.
Obviously, that was the precise procedure followed here.
ORDER
AND NOW, this 21st day of February, 1979, the order of the Unemployment Compensation Board of Review, dated March 25, 1977, is hereby affirmed.