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JAMES L. MARTIN v. COMMONWEALTH PENNSYLVANIA (04/29/82)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: April 29, 1982.

JAMES L. MARTIN, 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 James L. Martin, No. B-185317.

COUNSEL

James L. Martin, petitioner, for himself.

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

Judges Craig, MacPhail and Doyle, sitting as a panel of three. Opinion by Judge Craig. This decision was reached prior to the resignation of Judge Mencer.

Author: Craig

[ 66 Pa. Commw. Page 342]

Claimant James L. Martin questions a denial of benefits by the Unemployment Compensation Board of Review, which affirmed a referee's decision disqualifying him on the grounds that he voluntarily terminated his employment*fn1 as an account supervisor for the Pennsylvania Farm Management and Business Analysis Service (employer).

On the basis of the claimant's testimony, the board found that the claimant's departure was precipitated by his dissatisfaction with the additional territory assigned to him by the employer, and the claimant's belief that his work for the employer was in violation of Internal Revenue Service enrolled agent regulations.

Absent evidence of unreasonableness, we cannot presume that a modification of the claimant's territory -- clearly permitted under the terms of the employment contract*fn2 -- is necessitous and compelling cause for termination. Mosebauer v. Unemployment Compensation Board of Review, 61 Pa. Commonwealth Ct. 269, 433 A.2d 599 (1981); Hower v. Unemployment Compensation Board of Review, 54 Pa. Commonwealth Ct. 139, 420 A.2d 36 (1980).*fn3

[ 66 Pa. Commw. Page 343]

The claimant's contention that he could not continue working for the employer without jeopardizing his enrolled agent status with the IRS is refuted by the letter he received from the Department of Treasury, which stated:

I am of the view that Section 10.30(e) of Circular 230 would permit you to retain your status as an enrolled agent while employed by FMBAS even if that entity obtained clients in a manner prohibited by the regulations. However, while your employment by FMBAS under those circumstances would not in and of itself be in violation of the regulations in Circular 230, Section 10.30(e) would prohibit you, either directly or indirectly, from holding yourself out as an enrolled agent or practicing before the Internal Revenue Service in connection with such employment.

The employer's representative testified that he had examined the regulations and concluded "the methods that are encouraged for employees . . . to use in obtaining clients are not in violation of that particular provision."

Finding no capricious disregard of the evidence by the board,*fn4 we affirm.

[ 66 Pa. Commw. Page 344]

Order

Now, April 29, 1982, the order of the Unemployment Compensation Board of Review, dated June 23, 1980, No. B-185317, is affirmed.

This decision was reached prior to the resignation of Judge Mencer.

Disposition

Affirmed.


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