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CAROL B. ZINGLER v. COMMONWEALTH PENNSYLVANIA (09/26/84)

decided: September 26, 1984.

CAROL B. ZINGLER, 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 Carol B. Zingler, No. B-215445.

COUNSEL

Alexander A. DiSanti, with him, Jeffrey K. Martin, Richard, DiSanti, Hamilton, Gallagher & Paul, for petitioner.

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

Judges Rogers, Colins and Barbieri, sitting as a panel of three. Opinion by Judge Barbieri.

Author: Barbieri

[ 85 Pa. Commw. Page 314]

Carol B. Zingler (Claimant) appeals here from a decision and order of the Unemployment Compensation Board of Review (Board) finding her to be disqualified from receiving unemployment compensation benefits by the provisions of Section 402(b) of the Unemployment Compensation Law (Law)*fn1 because she

[ 85 Pa. Commw. Page 315]

    voluntarily terminated her employment without cause of a necessitous and compelling nature. We reverse.

The facts in this case are not in dispute.

On August 21, 1982 Claimant voluntarily terminated her employment as a $13,000 per year manager of a retail women's clothing store in Braddock, Pennsylvania to join her husband who had secured a job with the State Lottery of New Jersey. At the time Claimant's husband secured this job he had been unemployed for approximately five months after being fired from his previous job, and both Claimant and her husband moved into a home they owned and rented in Medford Lakes, New Jersey which Claimant testified they had been unable to sell when they moved to Pittsburgh three years earlier. Claimant further testified that this home was approximately fifty minutes by car from her husband's new employment, that her family only had one car, and that she could not afford to maintain a separate residence from her husband. The Board found Claimant to be ineligible for benefits simply on the basis of its findings (1) that "Claimant's husband voluntarily accepted the offer of a new job[,]" (2) that Claimant had no children at home requiring her care, and (3) that "Claimant's primary reason for voluntarily terminating her employment was to accompany her spouse to the New Jersey Area. . . ." The present appeal followed.

A claimant has the burden, of course, of establishing that his or her departure from employment was for a 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, as here, the party with the burden of proof has not prevailed below, our scope of review is limited to determining whether the Board's findings are consistent with each other and with the conclusions

[ 85 Pa. Commw. Page 316]

    of law and whether they can be sustained without a capricious disregard of competent evidence. Wheeler v. Unemployment Compensation Board of Review, 69 ...


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