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CARL D. DICKHOFF v. COMMONWEALTH PENNSYLVANIA (08/26/82)

decided: August 26, 1982.

CARL D. DICKHOFF, 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 Carl D. Dickhoff, No. B-184951.

COUNSEL

Edward R. Schellhammer, with him John D. Gibson, Stephen E. DiNovis, and Martin Nadorlik, for petitioner.

William J. Kennedy, Associate Counsel, with him Richard L. Cole, Jr., Chief Counsel, for respondent.

Judges Craig, MacPhail and Doyle, sitting as a panel of three. Opinion by Judge Doyle. Judge Mencer did not participate in the decision in this case.

Author: Doyle

[ 68 Pa. Commw. Page 454]

This is an appeal by Carl D. Dickhoff (Claimant) from a decision and order of the Unemployment Compensation Board of Review (Board) affirming a referee's decision that Claimant had voluntarily terminated his employment without cause of a "necessitous and compelling" nature and was therefore disqualified from receiving unemployment compensation benefits by Section 402(b)(1) of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. ยง 802(b)(1).*fn1 We affirm.

Claimant resides with his wife and children in Johnstown, Pennsylvania. Following the bankruptcy of his personal business, Claimant sought employment which would enable him to leave the Johnstown area. In August, 1979, he was hired by the Maryland State Department of Education, Bureau of Vocational Rehabilitation (Employer) as a counselor with an annual salary of $12,574. Claimant's job was located in the area of Baltimore, Maryland. As a result, he lived with relatives in Baltimore during the work week and commuted home for weekends. Ostensibly this arrangement was to last only so long as it took Claimant to acquire the means to relocate his family to Maryland. On December 10, 1979, however, Claimant tendered

[ 68 Pa. Commw. Page 455]

    a letter of resignation to Employer effective December 28, 1979, which stated that he was leaving for unspecified "personal reasons." He never discussed any emotional or medical problems with Employer prior to terminating his employment because he felt it was not Employer's concern. Claimant applied for benefits and the Bureau (now Office) of Employment Security determined that Claimant had left his employment voluntarily but with cause of a necessitous and compelling nature under Section 402(b)(1) of the Law. Employer appealed and a referee's hearing was held after which Claimant was deemed disqualified from receiving benefits by reason of his failure to establish cause of a necessitous and compelling nature for voluntarily terminating his employment. Claimant again appealed, the Board affirmed the referee, and the appeal to this Court followed.

The burden of proving cause of a necessitous and compelling nature for voluntarily terminating employment such as to render a claimant eligible for unemployment compensation benefits rests with the claimant. Stiffler v. Unemployment Compensation Board of Review, 64 Pa. Commonwealth Ct. 44, 438 A.2d 1058 (1982). Where, as here, the party with the burden of proof has not prevailed below, this Court's scope of review is limited to a determination of 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. Spinelli v. Unemployment Compensation Board of Review, 63 Pa. Commonwealth Ct. 358, 437 A.2d 1320 (1981).

Claimant asserts that the Board was in error in not finding he had cause of a necessitous and compelling nature for terminating his employment. Specifically, he contends that the evidence shows that he had been unsuccessful in his attempts to sell or rent his house in Johnstown so as to be able to relocate his family to

[ 68 Pa. Commw. Page 456]

Maryland and that the resulting absence from his family for five days at a time was causing a substantial deterioration of his emotional ...


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