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

COMMONWEALTH COURT OF PENNSYLVANIA


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 resignation, the test for cause of a necessitous and compelling nature, for the circumstances at that time, was met. Judge Blatt went on to write:

Nevertheless, the claimant's duty to pursue a prudent course of action in regard to his employer and his employment did not cease at the time he gave notice of his resignation, but remained in effect at least until the time at which his resignation actually was to take effect. Yet there is no evidence in the record before us to indicate that the claimant made any effort whatsoever to rescind his resignation or to request reemployment with PP&L, where, as the record does indicate, continuing employment remained available. Because it was his burden to prove that his justification for leaving his employment continued to exist until at least the point in time when his resignation took effect, and he failed to meet this burden, he is not now eligible for benefits. . . .

Id. at 223, 351 A.2d at 700.

Applying the same rationale to the instant case, we find no error in the Board's conclusion that since the effective date of her resignation was almost a week

[ 54 Pa. Commw. Page 243]

    away and she was eligible for reinstatement, petitioner should have requested reinstatement with the District.

Accordingly, we will enter the following

Order

And Now, October 10, 1980, the order of the Unemployment Compensation Board of Review, Decision No. B-170538, dated March 28, 1979, denying benefits to Marie Antonoff, is affirmed.

Disposition

Affirmed.


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