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BRENDA BACON v. COMMONWEALTH PENNSYLVANIA (04/29/85)

decided: April 29, 1985.

BRENDA BACON, 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 Brenda Bacon, No. B-216832.

COUNSEL

Judith Wilson, for petitioner.

Richard F. Faux, Associate Counsel, with him, Charles G. Hasson, Acting Deputy Chief Counsel, for respondent.

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

Author: Barry

[ 89 Pa. Commw. Page 36]

This appeal results from an order of the Unemployment Compensation Board of Review (Board) which reversed a decision of the referee granting benefits to claimant Brenda Bacon.

Claimant was last employed by the Molded Fiber Glass Company until she quit her job on August 13, 1982. Claimant's husband, an alcoholic, used to beat her when he was intoxicated. For approximately two and one half years prior to July of 1982, her husband had quit drinking and no violent acts had occurred during this thirty-month period. In July of 1982, however, her husband began drinking again.

[ 89 Pa. Commw. Page 37]

Although he did not beat her in July and August of 1982, claimant was in fear of both her physical safety and that of her two children. Claimant had no other family in Pennsylvania. As a result, she quit her job and took the children to live with their father (claimant's former husband) in another state. When claimant's husband quit drinking and began taking antibuse,*fn1 claimant returned without her children to live with her husband.

Claimant's application for benefits was denied by the Office of Employment Security. Claimant appealed to the referee who found that claimant had cause of a necessitous and compelling nature justifying her voluntary termination, thereby rendering claimant eligible for benefits under Section 402(b) of the Unemployment Compensation Law (Act), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b) (Supp. 1965-83). The Board reversed and this appeal followed.

The burden of establishing cause of a necessitous and compelling nature justifying a voluntary termination is on the claimant. Steffy v. Unemployment Compensation Board of Review, 499 Pa. 367, 453 A.2d 591 (1982). Where the party with the burden of proof has not prevailed below, our review is limited to determining whether the factual findings are consistent, whether those findings can be sustained without capricious disregard of competent evidence and whether any errors of law have been committed. Bruder v. Unemployment Compensation Board of Review, 70 Pa. Commonwealth Ct. 9, 452 A.2d 288 (1982). In Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 359, 378 A.2d 829, 832-33 (1977), the court

[ 89 Pa. Commw. Page 38]

    defined as necessitous and compelling those "circumstances which produce pressure to terminate employment that is both real and substantial, and which would compel a reasonable person under the circumstances to act in the same manner." As Judge Reno explained in Sturdevant Unemployment Compensation Case, 158 Pa. Superior Ct. 548, 557, 45 A.2d 898, 903 (1946), "The pressure of necessity, of legal duty, or family obligations, or other overpowering ...


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