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decided: October 31, 1978.


Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Alice Wallace, No. B-134227.


Harold I. Goodman, for appellant.

Susan Shinkman, Assistant Attorney General, with her Daniel R. Schuckers, Assistant Attorney General, Sydney Reuben, Assistant Attorney General, and Robert P. Kane, Attorney General, for appellee.

Judges Crumlish, Jr. and Wilkinson, Jr., sitting as a panel of two. President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers, Blatt and DiSalle. Opinion by Judge Crumlish, Jr. Judge DiSalle concurs in the result only. Dissenting Opinion by President Judge Bowman. Judge Wilkinson, Jr. joins in this dissent. Dissenting Opinion by Judge Rogers.

Author: Crumlish

[ 38 Pa. Commw. Page 344]

Unemployment compensation claimant Alice Wallace (Claimant) has appealed the decision of the Unemployment Compensation Board of Review (Board) affirming a referee's denial of benefits following her voluntary termination of her employment under Section 402(b) of the Unemployment Compensation Law (Law).*fn1 The case challenges the validity, under the Equal Protection and Due Process Clauses of the United States Constitution, of the blanket disqualification effected by Subsection (b)(2)(II) of Section 402, 43 P.S. ยง 802, of all persons who quit their jobs for marital, filial or domestic reasons.

Claimant was employed as a nursing assistant at Misericordia Hospital in Philadelphia, working the middle shift, from 3:30 P.M. to 12 o'clock midnight. When her two older daughters moved away from home, she was faced with the need to provide care for her two sons, aged 11 and 14 years, during the evening. Unwilling to leave her job, she repeatedly requested a transfer to the day shift (7:30 A.M. to 3:30 P.M.) but no opening on that shift could be

[ 38 Pa. Commw. Page 345]

    found for her. Unable, after diligent search, to find someone to care for the children, she reluctantly resigned.

The unemployment compensation authorities' treatment of the case points up the very equal protection and due process problems lying at the heart of this appeal. The Bureau of Employment Security and the referee analyzed Claimant's application for benefits in terms of Section 402(b)(1) and, after considering the reasons for her resignation, found that those reasons did not constitute the "cause of a necessitous and compelling nature" which Section 402(b)(1) requires in order for an employee who voluntarily terminates his employment to be eligible for benefits. The Board, however, analyzed the case under Section 402(b)(2)(II), which disqualifies all persons who quit for domestic reasons regardless of good cause considerations and, again, denied benefits to her.*fn2

Claimant's argument is two-pronged. First, she contends that by effectively preventing persons who quit their jobs for domestic reasons from showing that their resignations were motivated by necessitous and

[ 38 Pa. Commw. Page 346]

    compelling causes, whereas persons quitting their jobs for any other reason may so argue, the statute establishes a classification which bears no rational relationship to any legitimate state interest and hence violates the guarantee of equal protection. Second, relying on Turner v. Department of Employment Security, 423 U.S. 44 (1975), and Cleveland Board of Education v. LaFleur, 414 U.S. 632 (1972), she maintains that Section 402(b)(2)(II) creates an irrebuttable presumption that a domestic quit can never be for a necessitous and compelling reason -- a presumption which, she alleges, is not universally and necessarily true and which, therefore, is offensive to the Due Process Clause which disapproves such presumptions and mandates that they be drawn as narrowly as possible.

To support her argument that the presumption is not universally true, Claimant points to the opinions of the Superior and Supreme Courts during those periods when the Law did not contain the absolute disqualification of all domestic termination employees*fn3 -- cases in which Judges, led by Judge Reno in his landmark decision in Sturdevant Unemployment Compensation Case, 158 Pa. Superior Ct. 548, 45 A.2d 898 (1946), held that domestic ...

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