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SUSAN M. KIELEY v. COMMONWEALTH PENNSYLVANIA (03/06/84)

decided: March 6, 1984.

SUSAN M. KIELEY, 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 Susan M. Kieley, No. B-210799.

COUNSEL

Christopher C. Straub, Allison & Pyfer, for petitioner.

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

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

Author: Barbieri

[ 80 Pa. Commw. Page 619]

Susan M. Kieley (Claimant) comes before this Court seeking review of an order of the Unemployment Compensation Board of Review sustaining the decision of a referee denying benefits on the ground of Claimant's ineligibility under Section 402(b) of

[ 80 Pa. Commw. Page 620]

    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). We will affirm.

Claimant voluntarily terminated her employment as rental and leasing manager for an automobile dealer after serving in that capacity for eight weeks. The record shows that Claimant agreed to accept the position on a temporary basis as a favor to a former supervisor, and that she was then offered a permanent position when she performed her duties well.

A claimant seeking benefits, of course, who has voluntarily terminated his or her employment, has the burden of proving that he or she had a necessitous and compelling reason for taking this action. Cowls v. Unemployment Compensation Board of Review, 58 Pa. Commonwealth Ct. 150, 417 A.2d 722 (1981). "[S]uch a claimant must establish that he made a reasonable effort to preserve his employment and that he had no real choice but to leave his employment." Id. at 153, 427 A.2d at 723.

Here, the referee found as a fact based on Claimant's testimony that "Claimant voluntarily terminated her position because it was too far to drive (50 miles one way) and because her parents were ill and her help was needed at home."

With respect to the question of distance, we have held that even a sixty mile commute to work, without more, is not a necessitous and compelling reason for terminating employment, Musguire v. Unemployment Compensation Board of Review, 52 Pa. Commonwealth Ct. 137, 415 A.2d 708 (1980), and we similarly believe here that a reasonable person would not have ...


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