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MARIE ANTONOFF v. COMMONWEALTH PENNSYLVANIA (10/10/80)

decided: October 10, 1980.

MARIE ANTONOFF, 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 Marie Antonoff, No. B-170538.

COUNSEL

Michael H. Kaliner, for petitioner.

Charles G. Hasson, Assistant Attorney General, with him Richard Wagner, Chief Counsel, and Edward G. Biester, Jr., Attorney General, for respondent.

Judges Wilkinson, Jr., Rogers and MacPhail, sitting as a panel of three. Opinion by Judge Wilkinson, Jr.

Author: Wilkinson

[ 54 Pa. Commw. Page 240]

Petitioner appeals from an order of the Unemployment Compensation Board of Review (Board) denying benefits. We affirm.

Petitioner was last employed by Smiley's Inc. in Dallas, Texas as a salesperson from June 19, 1978 to August 17, 1978, when the company discontinued operations. Previous to her employment with Smiley's,

[ 54 Pa. Commw. Page 241]

    petitioner was employed as a school teacher by the Upper Merion School District (District) for nine years. By letter dated June 24, 1978, petitioner resigned her position as a teacher, effective in 60 days (August 23, 1978). The District sent petitioner a letter accepting petitioner's resignation, effective August 23, 1978. After her work with Smiley's had ended, petitioner did not get in touch with the District to see if her teaching position was still open.*fn1 According to the testimony of the District's superintendent, if petitioner had reported to the District she would have been reinstated.

The Bureau of Employment Security (now the Office of Employment Security) issued a determination granting benefits to petitioner. After a hearing, the referee affirmed the grant of benefits. Upon appeal to the Board and a hearing for additional testimony, the Board entered its order denying benefits.

[ 54 Pa. Commw. Page 242]

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), provides in part that an employee shall be ineligible for compensation for any week in which his or her unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature. One who voluntarily terminates his or her employment bears the burden of proving a necessitous and compelling cause. Westfall v. Unemployment Compensation Board of Review, 32 Pa. Commonwealth Ct. 619, 379 A.2d 1389 (1977). The receipt and acceptance of a firm offer of employment does constitute termination for cause of a necessitous and compelling nature. Steinberg v. Unemployment Compensation Board of Page 242} Review, 34 Pa. Commonwealth Ct. 294, 383 A.2d 1284 (1978).

In Unemployment Compensation Board of Review v. Pennsylvania Power & Light Co., 23 Pa. Commonwealth Ct. 220, 351 A.2d 698 (1976), a claimant who had given two weeks notice to his employer that he would be leaving to accept more lucrative employment learned the day before he was scheduled to take the new position that the job had failed to materialize and that no work was presently available for him. The claimant left his employment as planned and filed for unemployment compensation benefits. Judge Blatt in the opinion wrote that when the claimant submitted his notice of ...


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