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RUTH J. BROWN v. COMMONWEALTH PENNSYLVANIA (08/16/85)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: August 16, 1985.

RUTH J. BROWN, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT

Appeal from the Order of the Unemployment Compensation Board of Review in the case of In Re: Claim of Ruth J. Brown, No. B-222058.

COUNSEL

Robert Senville, for petitioner.

John W. English, Jr., Associate Counsel, with him, Charles G. Hasson, Acting Deputy Chief Counsel, for respondent.

Judges MacPhail, Barry and Palladino, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 91 Pa. Commw. Page 197]

Ruth J. Brown (Claimant) appeals here from an order of the Unemployment Compensation Board of Review (Board) which affirmed the referee's denial of benefits to Claimant pursuant to Section 402(b) of the Unemployment Compensation Law (Law).*fn1

The Board found as fact*fn2 that on her last day of work for the County of Berks (Employer), August 19,

[ 91 Pa. Commw. Page 1981982]

, Claimant sustained a work-related injury. Subsequently, Claimant's only income was her workmen's compensation award which amounted to two-thirds of her salary while employed. Claimant experienced financial hardship for this reason. Because of continuing debt and inability to return to work due to the injury, Claimant resigned from her position effective March, 31, 1983. This action enabled her to withdraw her own contributions to Employer's retirement fund and use those moneys to repay her debts. Claimant's son and his wife lived with her and helped to incur some of the debts. Employer accepted Claimant's resignation, making it clear that if Claimant desired to return to work in the future she would have to reapply as a new employee.*fn3

The record clearly supports the conclusion that Claimant voluntarily terminated her employment; she initiated the severance of the employment relationship and Employer did not do anything which could be understood as discharging Claimant. Our analysis, therefore, must be of whether Claimant's reason for resigning from her employment constitutes necessitous and compelling cause. See Section 402(b) of the Law.*fn4 In order to be eligible for benefits, Claimant must have

[ 91 Pa. Commw. Page 199]

    acted with ordinary common sense in terminating her employment and must have made a reasonable effort to maintain the employment relationship. Gillooly v. Unemployment Compensation Board of Review, 76 Pa. Commonwealth Ct. 20, 462 A.2d 958 (1983). In an early analysis of the circumstances under which an employee could sever the employment relationship and yet remain eligible for compensation benefits, our Superior Court stated

When therefore the pressure of real not imaginary, substantial not trifling, reasonable not whimsical, circumstances compel the decision to leave employment, the decision is voluntary in the sense that the worker has willed it, but involuntary because outward pressures have compelled it. Or to state it differently, if a worker leaves his employment when he is compelled to do so by necessitous circumstances or because of legal or family obligations, his leaving is voluntary with good cause, and under the act he is entitled to benefits.

Sturdevant Unemployment Compensation Case, 158 Pa. Superior Ct. 548, 557, 45 A.2d 898, 903 (1946) (emphasis in original, footnote omitted).*fn5

Our Supreme Court has further stated that 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" are necessitous

[ 91 Pa. Commw. Page 200]

    and compelling. Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 359, 378 A.2d 829, 832-33 (1977). In Rose v. Unemployment Compensation Board of Review, 41 Pa. Commonwealth Ct. 127, 398 A.2d 749 (1979), this Court analyzed the circumstances under which financial difficulties might constitute necessitous and compelling cause for an employee to terminate her employment. We there found that the claimant must have sought to lower her fixed monthly expenses following a change in her financial situation.*fn6 Because the claimant failed to have done so this Court held that the Board's denial of compensation was supportable.

This court further refined its analysis of the role of economic factors in voluntary termination cases in Oberholtzer v. Unemployment Compensation Board of Review, 66 Pa. Commonwealth Ct. 55, 58, 444 A.2d 789, 791 (1982), wherein we stated that "benefits should be denied where the record indicates that (1) continuing work was available, and (2) the claimant made no attempt to modify her economic situation and remain in the area where her employment was." Although Claimant in the instant case did not move away from the area in which she was employed, that analysis is still valid. Continuing work was available to Claimant prior to her resignation. Claimant insists that she did attempt to modify her economic situation by making unavailing attempts to obtain a loan to meet her unexpected expenses,*fn7 and that such a loan was unattainable because she was not working. The Board

[ 91 Pa. Commw. Page 201]

    found, however, that Claimant had not successfully shown that there was an unavailing effort to lower her fixed monthly expenses or that her incurred debts were beyond her control. We note, in addition, that there is no record evidence that Claimant sought to find out when she could return to work. Her testimony was that had she known she could return three weeks after her resignation, she would not have resigned. This fact is very significant in light of the statement that Claimant made that her financial problems were primarily a result of her temporary disability and concomitant reduction in income. Finally, there is no evidence as to what steps, if any, Claimant undertook to have her son and his wife share in the responsibility for the financial problem they helped to create.

While it is unfortunate that Claimant was faced with what she regarded as insurmountable financial difficulties, we will not overturn the Board's decision that Claimant failed to meet her burden of proving necessitous and compelling cause for her voluntary termination in the circumstances of this case where Claimant's sole reason for resignation was to enable her to withdraw her retirement fund to ease her current financial situation.*fn8

Finding no capricious disregard of competent evidence nor error of law and also that the findings of

[ 91 Pa. Commw. Page 202]

    fact are consistent with each other and with the conclusions of law, we affirm.

Order

The order of the Unemployment Compensation Board of Review dated September 8, 1983, No. B-222058, is hereby affirmed.

Disposition

Affirmed.


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