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JOYCE L. SWAYNOS v. COMMONWEALTH PENNSYLVANIA (02/29/84)

decided: February 29, 1984.

JOYCE L. SWAYNOS, 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 B-198572-B.

COUNSEL

Walter C. Pruchnik, Jr., for petitioner.

Richard F. Faux, Associate Counsel, with him Richard L. Cole, Jr., Chief Counsel, for respondent.

President Judge Crumlish, Jr., and Judges Barry and Barbieri, sitting as a panel of three. Opinion by President Judge Crumlish, Jr.

Author: Crumlish

[ 80 Pa. Commw. Page 528]

Joyce L. Swaynos appeals an Unemployment Compensation Board of Review order denying her benefits. We reverse and remand.

Swaynos' husband's employment as general manager of Berwind Railway Corporation's car repair shop in Windber, Pennsylvania, was terminated when Berwind closed that facility. His search for similar employment took him to Fitzgerald, Georgia, where

[ 80 Pa. Commw. Page 529]

    he obtained a position with Fitzgerald Railcar Service. Swaynos then notified her supervisor at the A & P Company's Johnstown grocery store that, under the circumstances, she was leaving her employment to relocate in Georgia.

Swaynos' application for benefits was granted by the Office of Employment Security but, on appeal by A & P, the referee reversed, finding that Swaynos had not made a good faith effort to obtain a transfer to a position with A & P in Georgia, concluding that she left her employment without cause of a necessitous and compelling nature and, thus, holding her disqualified by Section 402(b)(1) of the Unemployment Compensation Law.*fn1

Swaynos now argues, and we agree, that a finding of an absence of good faith effort to obtain a transfer cannot by itself support a determination that a claimant's voluntary employment termination was without necessitous and compelling cause. In Genetin v. Unemployment Compensation Board of Review, 499 Pa. 125, 451 A.2d 1353 (1982), rev'g 61 Pa. Commonwealth Ct. 133, 433 A.2d 565 (1981), our Supreme Court held that, where an employee can no longer perform her regular duties because of circumstances beyond her control, to remain eligible for benefits she need only inform her employer of the circumstances and her inability to continue in her present position. Any duty respecting a transfer lies with the employer, id. at 132, 451 A.2d at 1356, because

[t]he availability of an employment position, the duties expected to be performed by one serving in that capacity, and the desirability of that ...


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