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WILLIAM F. MCCANN v. COMMONWEALTH PENNSYLVANIA (06/06/78)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: June 6, 1978.

WILLIAM F. MCCANN, SR., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT

Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of William F. McCann, Sr., No. 136202.

COUNSEL

David B. Washington, for petitioner.

Susan Shinkman, Assistant Attorney General, with her James Bradley, Assistant Attorney General, Sydney Reuben, Assistant Attorney General, and Robert P. Kane, Attorney General, for respondent.

Judges Mencer, Rogers and DiSalle, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 35 Pa. Commw. Page 629]

William McCann has appealed from an order of the Unemployment Compensation Board of Review affirming a referee's decision denying benefits on the ground that he had voluntarily terminated his employment without cause of a necessitous and compelling nature. See Section 402(b)(1) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. ยง 802(b)(1).

McCann was employed by the Breda Miller Freight System (Breda Miller) as a part-time dispatcher at the company's Millvale terminal. He had been hired by his son who was the terminal manager and was his supervisor. The Millvale terminal was closed and its operations moved to Canonsburg, Pennsylvania, some 36 miles distant. McCann never appeared for work at the new location. He filed a timely application for unemployment benefits alleging that Breda Miller had

[ 35 Pa. Commw. Page 630]

    effectively discharged him by failing expressly to offer him a position at the new location.*fn1 The referee found that there was continuing work available for McCann at the new site and that McCann had voluntarily terminated his employment because he didn't want to commute to the new location. The Board of Review affirmed the referee and we now affirm the Board of Review.

Where the party with the burden of proof lost, the scope of review of the record is limited to a determination of whether the findings of fact are supported by substantial evidence. Lippy v. Unemployment Compensation Board of Review, 32 Pa. Commonwealth Ct. 251, 378 A.2d 1048 (1977). McCann contends that there is no evidence supporting the finding that he quit his employment with Breda Miller because he did not think it worthwhile to commute to the new job site. On the contrary, the record shows that McCann reported to his son with respect to his work at Breda Miller and that the son was well aware that there was work available for McCann at the Canonsburg terminal. The son, called as a witness by McCann, testified: "He could have gone [to Canonsburg] if he wanted to. . . ." In addition, when asked by the referee, "Did you tell [Breda Miller] that your father would not be going [to Canonsburg] too?" McCann's son answered, "Yes, I told them that it was just too costly for parttime work."

Order affirmed.

Order

And Now, this 6th day of June, 1978, the order of the Unemployment Compensation Board of Review dated October 28, 1976 is affirmed.

Disposition

Affirmed.


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