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DOUGLAS J. TYLER v. COMMONWEALTH PENNSYLVANIA (01/05/79)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: January 5, 1979.

DOUGLAS J. TYLER, 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 Douglas J. Tyler, No. B-144737.

COUNSEL

Thomas J. Henderson, for petitioner.

William J. Kennedy, Assistant Attorney General, with him Gerald Gornish, Acting Attorney General, for respondent.

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

Author: Disalle

[ 39 Pa. Commw. Page 535]

This is an appeal by Douglas J. Tyler (Claimant) from an order of the Unemployment Compensation Board of Review (Board) affirming a referee's denial of benefits pursuant to a finding that Claimant's unemployment was due to voluntarily leaving work without cause of a necessitous and compelling nature within the meaning of 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). Claimant contends that his unemployment was prompted by serious transportation difficulties arising from a work schedule change imposed at a time when he had just moved his residence. These difficulties were so unreasonably burdensome, he argues, that they constituted a necessitous and compelling reason for quitting his job.

We note initially that the voluntariness of a termination of employment is ultimately a question of law and is, therefore, reviewable by this Court. Correa v. Unemployment Compensation Board of Review, 31 Pa. Commonwealth Ct. 13, 374 A.2d 1017 (1977). Nevertheless, it is clear that the resolution of this question "necessarily depends upon the underlying facts as

[ 39 Pa. Commw. Page 536]

    found by the compensation authorities." Unemployment Compensation Board of Review v. Beyer, 20 Pa. Commonwealth Ct. 17, 21, 340 A.2d 601, 603 (1975). In other words, though the voluntariness question may be reviewed by this Court, proper appellate review thereof is possible only where the compensation authorities have laid an adequate factual foundation. See, e.g., Wenrich v. Unemployment Compensation Board of Review, 34 Pa. Commonwealth Ct. 186, 382 A.2d 1303 (1978).

Turning to the issue at hand, it is clear that transportation difficulties may constitute a necessitous and compelling reason for terminating employment. These difficulties, however, must be so serious and unreasonable as to present a virtually insurmountable problem, and the burden of proof on this point lies with the claimant. Correa, supra. We also stated in Correa that in order to make such a showing, a claimant must demonstrate that he took reasonable steps to remedy or overcome his transportation problem before he severed his employment.*fn1

Normally at this point, we would review the relevant facts to ascertain whether Claimant complied with this latter requirement. Unfortunately, we are at a loss to do so, since the referee, as readily admitted by the Board in its brief, failed to make any finding of fact regarding the nature and extent of Claimant's efforts to remedy his transportation predicament.*fn2 We note further that, even had the referee made the necessary

[ 39 Pa. Commw. Page 537]

    finding, there is precious little evidence in the record to support adequate appellate review thereof.*fn3

A necessary finding of fact being absent and the record, as a whole, being notably deficient, we will vacate the order of the Board and remand this case so that the necessary finding may be made and the record, if necessary, supplemented.

Order

And Now, this 5th day of January, 1979, the order of the Unemployment Compensation Board of Review dated May 2, 1977, affirming a referee's decision dated January 25, 1977, is hereby vacated and the case is remanded for proceedings consistent with this opinion.

Disposition

Order vacated. Case remanded.


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