IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Transcription

1 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Joshua Grant Fisher, : Petitioner : : v. : : Unemployment Compensation : Board of Review, : No C.D Respondent : Submitted: December 13, 2013 BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McGINLEY FILED: January 16, 2014 Joshua Grant Fisher (Claimant) challenges the order of the Unemployment Compensation Board of Review (Board) which affirmed the referee s denial of unemployment compensation benefits under Section 402(b) of the Unemployment Compensation Law (Law). 1 Board, are as follows: The facts, as initially found by the referee and confirmed by the 1. The claimant was employed full-time as a safety coordinator with Goodwill of Southwestern Pennsylvania from June 13, 2011 through December 21, 2012 at a final rate of pay of $21.23 per hour. 2. The claimant s fiancé is from the Cleveland, Ohio area where she is employed. 1 P.S. 802(e). Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43

2 3. The claimant s fiancé was unable to find suitable employment in the western Pennsylvania region. 4. The claimant decided to relocate to Cleveland, Ohio and inquired if he could be transferred to telecommute. 5. The various Goodwill agencies are separate entities and the employer was not able to offer the claimant a transfer or the ability to telecommute from his new home in Cleveland, Ohio. 6. Commuting from Cleveland to Pittsburgh to continue employment with Goodwill of Southwestern Pennsylvania would cause the claimant a financial hardship. 7. On November 26, 2012, the claimant submitted a letter of resignation informing the employer that he was resigning effective December 21, 2012 to relocate to Cleveland, Ohio by Christmas and that he would be married in late December The claimant relocated to the Cleveland, Ohio area and married his fiancé on December 29, Referee s Decision, April 10, 2013, (Decision), Findings of Fact Nos. 1-8 at 1. The referee determined: Here, the claimant spent a considerable amount of time arguing that it would have been a financial hardship for the claimant to commute from Cleveland, Ohio to the Pittsburgh area to maintain employment with Goodwill of Southwestern Pennsylvania. While there is no question that it would have been a financial hardship for the claimant to commute from Cleveland, Ohio to Goodwill of Southwestern Pennsylvania, the claimant made the choice to relocate and is responsible for creating his commuting problem. While the claimant made a valid personal choice to relocate to Cleveland, Ohio to marry his fiancé, it does not constitute cause of a necessitous and compelling nature for leaving 2

3 Decision at 2. employment within the meaning of section 402(b) of the Law. Claimant appealed to the Board which affirmed: The Board notes that the spouse following spouse doctrine does not apply in this case, as the claimant relocated to Ohio to be with his fiancé for personal reasons and did not wed until after his relocation. Therefore, the Board adopts and incorporates the Referee s findings and conclusions.... The employer also consented to allow the claimant to provide some testimony relevant to documentation that was not submitted prior to the hearing, and the claimant indicated it was unnecessary to continue the hearing so that he could submit his documentation. The claimant now requests a remand hearing on appeal to submit documentation. As the spouse following spouse doctrine does not apply, any documentation relative to demonstrating economic hardship in maintaining two residences and commuting would not change the outcome of the Board s decision. Because the claimant has not advanced proper cause for granting a remand hearing, the claimant s request that the record be remanded for additional testimony and evidence is denied. Board Opinion, June 27, 2013, at 1. 2 Claimant contends that the Board erred when it failed to find that he met the criteria for the spouse following spouse doctrine and was entitled to benefits because he had a necessitous and compelling reason for quitting his job. Claimant also contends that because the Board found that he made a valid personal 2 Claimant requested reconsideration which the Board denied. 3

4 choice in resigning and that the commute from Cleveland to Pittsburgh would cause him a financial hardship, he was eligible for benefits, and the Board erred when it failed to reconsider the denial of benefits and take into account Claimant s health and personal reasons for quitting his job. 3 Initially, Claimant contends that he met the criteria for the spouse following spouse doctrine and was entitled to benefits because he had a necessitous and compelling reason for quitting his job. Whether a termination of employment is voluntary is a question of law subject to this Court s review. The failure of an employee to take all reasonable steps to preserve employment results in a voluntary termination. Westwood v. Unemployment Compensation Board of Review, 532 A.2d 1281 (Pa. Cmwlth. 1987). An employee voluntarily terminating employment has the burden of proving that such termination was necessitous and compelling. The question of whether a claimant has a necessitous and compelling reason to terminate employment is a question of law reviewable by this Court. Willet v. Unemployment Compensation Board of Review, 429 A.2d 1282 (Pa. Cmwlth. 1981). Good cause for voluntarily leaving one s employment results from circumstances which produce pressure to terminate employment that is both real and substantial and which would compel a reasonable person under the circumstances to act in the same manner. Philadelphia Parking Authority v. 3 This Court s review in an unemployment compensation case is limited to a determination of whether constitutional rights were violated, errors of law were committed, or findings of fact were not supported by substantial evidence. Lee Hospital v. Unemployment Compensation Board of Review, 617 A.2d 695 (Pa. Cmwlth. 1994). 4

5 Unemployment Compensation Board of Review, 654 A.2d 280 (Pa. Cmwlth. 1995). Mere dissatisfaction with one s working conditions is not a necessitous and compelling reason for terminating one s employment. McKeown v. Unemployment Compensation Board of Review, 442 A.2d 1257 (Pa. Cmwlth. 1982). A claimant must make a reasonable effort to preserve her employment. Platz v. Unemployment Compensation Board of Review, 709 A.2d 450 (Pa. Cmwlth. 1998). Where a claimant terminates employment to join a relocating spouse, the claimant must demonstrate an economic hardship in maintaining two residences or that the move has posed an insurmountable commuting problem. The claimant must also show that her resignation was the direct result of her spouse s relocation, i.e., the necessity to relocate must be caused by circumstances beyond the control of the claimant s spouse and not by personal preference, and the decision to relocate must be reasonable and be made in good faith. The desire to maintain the family unit is not by itself sufficient cause to terminate one s employment and receive benefits. (Citations omitted). Sturpe v. Unemployment Compensation Board of Review, 823 A.2d 239, (Pa. Cmwlth. 2003). Here, Claimant quit his job on December 21, He married his wife on December 29, Therefore, at the time he quit his job he was not married. 5

6 In Kurtz v. Unemployment Compensation Board of Review, 516 A.2d 410 (Pa. Cmwlth. 1986), petition for allowance of appeal denied, 516 Pa. 644, 533 A.2d 715 (1987), Mary E. Kurtz (Kurtz) worked as an office clerk for Indiana University of Pennsylvania in Indiana, Pennsylvania. She resigned her position effective June 22, On June 23, 1984, she married a spouse who lived and worked in Harrisburg, where they established their home together. Kurtz was denied unemployment compensation benefits by the referee on the basis that she voluntarily left her job without a necessitous and compelling reason. The Board affirmed. Kurtz petitioned for review with this Court. Kurtz, 516 A.2d at 411. This Court affirmed on the basis that because there was here no family unit in existence at the time of the claimant s job termination, the following-spouse case doctrine does not apply. Kurtz, 516 A.2d at 412. Here, as in Kurtz, Claimant terminated his employment prior to his marriage. The Board did not err when it determined that the spouse following spouse doctrine did not apply. First, although Claimant stresses the distance of his commute from Cleveland if he had maintained employment and its effect on his health as well as the financial hardship if he maintained two residences, the Board found as fact that Claimant s reason for quitting his position was to relocate to Cleveland to marry his fiancé. Claimant stated on his internet claim form that the reason he quit was to follow spouse. Internet Initial Claims, January 31, 2013, at 2. Second, he also testified that the reason he moved to the Cleveland area was because he was 6

7 getting married and he and his spouse would take a financial hit for relocating to Pennsylvania. Notes of Testimony, April 5, 2013, at 10. Claimant s testimony supported the Board s finding for the reason he quit his employment. Claimant cannot now attempt to argue that he quit his job for health and financial reasons. Further, Claimant s argument that the commute from Cleveland to Pittsburgh was so prohibitively lengthy and expensive as to justify his voluntary quit lacks merit because the distance of the commute was caused by his voluntary decision to relocate. Because his voluntary decision caused his commuting problem, Claimant did not have a necessitous and compelling reason for terminating his employment. Kawa v. Unemployment Compensation Board of Review, 573 A.2d 252 (Pa. Cmwlth. 1990). Accordingly, this Court affirms. BERNARD L. McGINLEY, Judge 7

8 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Joshua Grant Fisher, : Petitioner : : v. : : Unemployment Compensation : Board of Review, : No C.D Respondent : AND NOW, this 16 th O R D E R day of January, 2014, the order of the Unemployment Compensation Board of Review in the above-captioned matter is affirmed. BERNARD L. McGINLEY, Judge