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LUCILLE A. EDUARDO v. COMMONWEALTH PENNSYLVANIA (08/26/81)

decided: August 26, 1981.

LUCILLE A. EDUARDO, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeal from the Order of the Unemployment Compensation Board of Review in the case of In Re: Claim of Lucille A. Eduardo, No. B-177912.

COUNSEL

Catherine T. Martin, for petitioner.

Karen Durkin, Associate Counsel, with her Richard Wagner, Counsel, and Richard L. Cole, Jr., Chief Counsel, for respondent.

Judges Mencer, MacPhail and Palladino, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 61 Pa. Commw. Page 425]

This is an appeal by Lucille A. Eduardo (Claimant) from an order of the Unemployment Compensation Board of Review (Board), which, after a remand hearing before its hearing officer, affirmed the referee's denial of benefits. The Board denied benefits on the ground that Claimant voluntarily terminated her employment without "cause of a necessitous and compelling nature," required by 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 was last employed as a management trainee by Sears, Roebuck and Company (Employer) from November, 1977, her last day of work occurring on June 1, 1979. Although Claimant's first assignment was to the Employer's Allegheny Center Store in Pittsburgh, at the time of hire Claimant was apprised that she might have to transfer to other stores within the Pittsburgh area. At the end of April,

[ 61 Pa. Commw. Page 4261979]

, Claimant was offered a promotion and reassignment to Employer's store in Uniontown, which is approximately fifty-five miles from Pittsburgh. Claimant accepted the transfer.

Shortly after moving to Uniontown, Claimant, who had lived with her parents while working in Pittsburgh, became homesick. Claimant did visit her parents as frequently as possible during the time she worked in Uniontown. However, on June 1, 1979, the twenty-two year old Claimant quit her job because she allegedly was emotionally upset and physically ill over having to live and work in Uniontown away from family and friends. Before quitting, Claimant informed the Employer that she was emotionally upset about her relocation. Claimant also asked before quitting to be transferred back to a store in Pittsburgh; this request was denied by Employer.

The facts of the instant case, as found by the Board, are not disputed by Claimant. Claimant raises on appeal the single issue of whether or not the Board erred as a matter of law in concluding that Claimant's voluntary termination of employment was not for cause of a necessitous and compelling nature. A legal conclusion, such as this, is always subject to appellate review. Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 378 A.2d 829 (1977).

A claimant becoming unemployed because of a voluntary termination assumes the burden of showing that such termination was for cause of a necessitous and compelling nature, to be eligible for compensation. Milsop v. Unemployment Compensation Board of Review, 45 Pa. Commonwealth Ct. 468, 405 A.2d 1017 (1979). ...


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