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DIANE M. STECK v. COMMONWEALTH PENNSYLVANIA (11/25/83)

decided: November 25, 1983.

DIANE M. STECK, 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 Diane M. Steck, No. B-204134.

COUNSEL

James Bukas, for petitioner.

Michael D. Alsher, Associate Counsel, with him Richard L. Cole, Chief Counsel, for respondent.

Judges Rogers, Craig and Doyle, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 78 Pa. Commw. Page 515]

Before this Court is an appeal by Diane M. Steck (Petitioner) from a decision of the Unemployment Compensation Board of Review (Board) denying unemployment compensation benefits on the grounds that Petitioner voluntarily terminated her employment without establishing cause of a necessitous and compelling nature. See Section 402(b) of the Pennsylvania Unemployment Compensation Law*fn1 (Law), 43 P.S. § 802(b). We reverse.

The facts in this matter are undisputed. Petitioner was employed as a teacher's aide by the Penncrest School District from 1972 through May 29, 1981, at which time she quit her job so as to be able to move to Arizona with her husband and two children. The move was undertaken at the direction of Petitioner's husband's physician who indicated that, because

[ 78 Pa. Commw. Page 516]

    of emphysema and an enlarged heart, there was a strong likelihood that Mr. Steck would not successfully endure another winter in a climate such as Pennsylvania's. Petitioner filed an interstate claim for unemployment compensation and benefits were denied by the Office of Employment Security. An appeal was filed and a hearing was held before a referee in Arizona. Because of confusion engendered by contradictory indications in the form Petitioner had received informing her of the denial of benefits,*fn2 the Arizona referee assumed that Petitioner had been found to have had necessitous and compelling circumstances for leaving her employment and that the only issue before him was the question of her current availability for suitable work. See Section 401(d)(1) of the Law, 43 P.S. § 801(d)(1). Thus, this latter issue was the sole focus of the referee's proceeding. The decision ultimately rendered, by a Pennsylvania referee on the basis of the record developed in Arizona, found Petitioner to be available for employment but nonetheless disqualified her from receipt of benefits for failing to establish cause of a necessitous and compelling nature for leaving her job. On appeal the Board affirmed and the appeal to this Court followed.

It is the burden of the employee, to be eligible for unemployment compensation, to establish that a voluntary termination of employment was for cause of a necessitous and compelling nature. Kleban v. Unemployment Compensation Board of Review, 73 Pa. Commonwealth Ct. 540, 459 A.2d 53 (1983). Where,

[ 78 Pa. Commw. Page 517]

    as here, the party with the burden of proof has not prevailed before the Board, this Court's scope of review is limited to determining whether the necessary findings of the Board are consistent with each other and with the conclusions of law and whether they can be sustained without a capricious disregard of competent evidence. Wheeler v. Unemployment Compensation Board of Review, 69 Pa. Commonwealth Ct. 201, 450 A.2d 775 (1982).

In her appeal to this Court, Petitioner asserts that the Board erred as a matter of law in denying her benefits. We are constrained to agree. The instant matter arose after a 1980 amendment to Section 402(b) of the Law*fn3 which deleted a clause specifically disqualifying from eligibility for benefits one who left work either to accompany his or her spouse to a new locality or for family obligations.*fn4 Prior to this amendment, one terminating employment so as to join a spouse or to be at home could not be found eligible for unemployment compensation where the desire to join the spouse or be at home was the predominant reason for the decision to quit. Richards v. Unemployment Compensation Board of Review, 491 Pa. 162, 420 A.2d 391 (1980). Rather, to be eligible for ...


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