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BEVERLY S. SPINELLI v. COMMONWEALTH PENNSYLVANIA (12/23/81)

decided: December 23, 1981.

BEVERLY S. SPINELLI, 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 Beverly S. Spinelli, No. B-183766.

COUNSEL

Jose A. Gomez, for petitioner.

Charles Hasson, Associate Counsel, with him Francine Ostrovsky, Associate Counsel, and Richard L. Cole, Jr., Chief Counsel, for respondent.

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

Author: Palladino

[ 63 Pa. Commw. Page 359]

Claimant appeals an order of the Unemployment Compensation Board of Review (Board) which affirmed a referee's denial of benefits pursuant to Section 402(b)(1) of the Unemployment Compensation Law (Law).*fn1 We reverse and remand.

After her divorce, Claimant attempted to sell her home in Pennsylvania and arranged to relocate to Kentucky where she had been offered employment. Claimant began her job in Kentucky on December 4, 1979, and voluntarily terminated said job on January 31, 1980. Thereafter, Claimant returned to Pennsylvania and applied for unemployment compensation.

[ 63 Pa. Commw. Page 360]

After a hearing at which Claimant's Kentucky employer did not appear, the referee found that "[C]laimant voluntarily separated the employment relationship for personal reasons [which were] that she was not earning sufficient money to maintain an apartment in Kentucky and also meet her mortgage payment . . . for her home located in Pennsylvania." Consequently, the referee held that Claimant left her employment in Kentucky "without cause of a necessitous and compelling nature" as required for eligibility under Section 402(b)(1) of the Law. Without taking additional evidence, the Board affirmed on appeal the referee's decision.

The sole issue on appeal before this Court is whether Claimant's voluntary termination was precipitated by Claimant's dissatisfaction with her wages, or, as Claimant contends, by Claimant's discovery of her employer's deception regarding Claimant's total working hours and aggregate wages.

"In voluntary termination cases, the burden is upon the employee to prove . . . [a] necessitous and compelling reason for leaving. . . ." Ruckstuhl v. Unemployment Compensation Board of Review, 57 Pa. Commonwealth Ct. 302, 305, 426 A.2d 719, 721 (1981). Where, as here, the party with the burden of proof did not prevail before the Board, this Court's scope of review consists of determining whether the findings of fact can be sustained without a capricious disregard of competent evidence and are consistent with each other and with the conclusions of law. Helsel v. Unemployment Compensation Board of Review, 54 Pa. Commonwealth Ct. 320, 421 A.2d 496 (1980).

A claimant's initial acceptance of a proffered job raises a presumption of the suitability of the job. National Aluminum Corp. v. Unemployment Compensation ...


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