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decided: April 17, 1980.


Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Margaret O'Connor, No. B-167836.


F. D. Hennessey, Jr., with him Margaret A. O'Connor, for petitioner.

William J. Kennedy, Assistant Attorney General, with him Richard Wagner, Chief Counsel and Edward G. Biester, Jr., Attorney General, for respondent.

Joseph W. Murphy, for party respondent.

President Judge Crumlish and Judges Rogers and Craig, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 50 Pa. Commw. Page 574]

Claimant Margaret A. O'Connor appeals from a decision of the Unemployment Compensation Board

[ 50 Pa. Commw. Page 575]

    of Review denying her claim for benefits under Section 402(b)(1) of the Unemployment Compensation Law, 43 P.S. § 802(b)(1),*fn1 and further determining that claimant's initial receipt of benefits was a recoupable fault overpayment under Section 804(a) of the law, 43 P.S. § 874(a).

While claimant was a law student she worked as a communications coordinator at the Pennsylvania House of Representatives. The board denied claimant benefits, reasoning that because claimant had voluntarily left her employment with the House of Representatives to pursue tentative employment in Delaware County, she had terminated without necessitous and compelling cause and therefore was ineligible for benefits under Section 402(b)(1) of the law.

On appeal, claimant contends that there is no substantial record evidence to support the board's finding that she voluntarily terminated her employment, and also that the board erred as a matter of law in determining that her separation was voluntary within the meaning of Section 402(b)(1).

Whether an employee's conduct constitutes a voluntary termination is a question of law, the resolution of which is dependent upon the facts as found by the compensation authorities. Lovrekovic v. Unemployment Compensation Board of Review, 36 Pa. Commonwealth Ct. 364-65, 387 A.2d 685-86 (1978).

Claimant maintains that her relocation plans were at all times tentative because she did not have a firm job offer and that she did not quit her job with the House of Representatives, but rather that her position ran out. However, claimant also testified, with regard to the job in Delaware County, that it was clear to her that, "I would eventually have a job if I wanted it but when and none of the details were clear."

[ 50 Pa. Commw. Page 576]

The employer's representative here testified that claimant's representations, to the effect that she was considering a tentative job offer in Delaware County and that she was considering relocating, were the proximate cause of the employer's failure to consider claimant a candidate for continued employment.*fn2

In Lovrekovic, supra, 36 Pa. Commonwealth Ct. at 366, 387 A.2d at 686, we stated, on the authority of Campbell Unemployment Compensation Case, 175 Pa. Superior Ct. 592, 596, 106 A.2d 687, 689 (1954):

[T]he idiomatic phrase 'due to' in Section 402(b)(1) of the law 'imports a causal relationship.

[ 50 Pa. Commw. Page 577]

. . . It brings into the Unemployment Compensation Law the principles and theory of legal causation.'

Thus, when the section says "unemployment . . . due to voluntarily leaving work," it plainly means unemployment caused by the employee's act of leaving.

Hence, because claimant's actions brought about the separation, it must be deemed a voluntary termination.

The mere possibility of obtaining another job, without a firm offer of employment, is insufficient to constitute necessitous and compelling cause for termination and will not qualify a claimant for unemployment compensation benefits. Unemployment Compensation Board of Review v. Pennsylvania Power and Light Co., 23 Pa. Commonwealth Ct. 220, 351 A.2d 698 (1976); Eckenrod v. Unemployment Compensation Board of Review, 15 Pa. Commonwealth Ct. 166, 325 A.2d 320 (1974). Because claimant's leaving was spurred only by a possibility of other employment, we agree with the board that claimant has failed to carry her burden under Section 402(b)(1).

We also affirm the board's determination that claimant was the recipient of a fault overpayment under Section 804(a), 43 P.S. § 874(a). Claimant stated on her application for unemployment benefits that she was unemployed because, "Job ended -- there was no other place for me." In Stormer v. Unemployment Compensation Board of Review, 32 Pa. Commonwealth Ct. 220, 378 A.2d 1037 (1977), a similar misrepresentation was found to constitute a basis for the finding of a "fault overpayment" -- one where "blame, censure, impropriety, shortcoming or culpability attaches" to the claimant. Daniels v. Unemployment Compensation Board of Review, 10 Pa. Commonwealth Ct. 241, 246, 309 A.2d 738, 742 (1973).

Therefore, the decision is affirmed.

[ 50 Pa. Commw. Page 578]


And Now, this 17th day of April, 1980, the order of the Unemployment Compensation Board of Review dated January 11, 1979 (B-167836) is affirmed.



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