Appeal from the Order of the Unemployment Compensation Board of Review in the case of In Re: Claim of Malcolm C. Taylor, No. B-180583-C.
Robert J. Manara, with him Linda K. Ludgate, for petitioner.
John T. Kupchinsky, Associate Counsel, with him Richard L. Cole, Jr., Chief Counsel, for respondent.
President Judge Crumlish and Judges Blatt and Doyle, sitting as a panel of three. Opinion by Judge Blatt. Judge Mencer did not participate in the decision in this case.
[ 66 Pa. Commw. Page 604]
Malcolm C. Taylor (claimant) appeals here from an order of the Unemployment Compensation Board of Review (Board) which denied him benefits pursuant to Section 402(b)(1) of the Pennsylvania Unemployment Compensation Law (Act).*fn1
The claimant was employed by the Commonwealth of Pennsylvania for approximately 20 years, the last five of which were with the Department of Labor and Industry, Unemployment Compensation Board of Review, as an Appeals Referee I. On April 16, 1979 he informed his supervisor by letter of his intention to resign from his position as of May 23, 1979 in order to join his wife who had moved to North Carolina after allegedly having "been advised by her doctors to leave
[ 66 Pa. Commw. Page 605]
the colder climate in Philadelphia and Wyomissing as they felt that the warmer climate of North Carolina would be more beneficial to her health."
The Interstate Claims Section of the Office of Employment Security (Office) determined that the claimant was ineligible to receive benefits pursuant to Section 402(b)(2) of the Act, 43 P.S. § 802(b)(2), because he had voluntarily terminated his employment merely to join his wife in a new locality. Following a hearing in North Carolina, at which the claimant appeared and testified, the referee affirmed but modified this determination by denying benefits pursuant to Section 402(b)(1) of the Act which denies benefits to an employee who voluntarily leaves work without cause of necessitous and compelling reason. The Pennsylvania Board, without taking additional evidence, found that the claimant's primary reason for terminating his employment was not to join his wife in a new locality but was rather to manage his real estate holdings there, and affirmed the referee's denial of benefits under Section 402(b)(1) of the Act, 43 P.S. § 802(b)(1). The claimant requested reconsideration and the Board vacated its previous decision. Then, on June 18, 1980 oral argument as to the applicability of the law on the basis of the previously established record, was held before the Board en banc and a further hearing was ordered for the purpose of receiving additional testimony. That hearing was then held in North Carolina after which, on September 30, 1980, the Pennsylvania Board again affirmed the referee and denied benefits to the claimant, once more citing Section 402(b)(1) of the Act, 43 P.S. § 802(b)(1). The claimant's request for reconsideration of the decision was denied and this appeal followed.
The claimant asserts that he moved to join his wife, who for health reasons had relocated to a new locality
[ 66 Pa. Commw. Page 606]
located an unreasonable commuting distance from his job. He testified that, prior to their occupancy of his previously rented North Carolina property, the house had been broken into several times and that he found it necessary to be with his wife because of the increased crime rate in the area. He further testified that he had been informed by an employee of the Civil Service Commission that a person in his job classification was prohibited from living in a state other than Pennsylvania while so employed and that by moving to North Carolina he was, therefore, ...