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ALICE BRENNAN v. COMMONWEALTH PENNSYLVANIA (02/11/86)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: February 11, 1986.

ALICE BRENNAN, 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 Alice Brennan, No. B-236397.

COUNSEL

James Bukac, for petitioner.

Charles G. Hasson, Acting Deputy Chief Counsel, for respondent.

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

Author: Doyle

[ 95 Pa. Commw. Page 115]

This is an appeal by Alice B. Brennan (Claimant) from an order of the Unemployment Compensation Board of Review (Board) which affirmed a referee's denial of benefits on the basis that Claimant had voluntarily terminated her employment without necessitous and compelling reasons. The referee found that Claimant was last employed as a full time Licensed Practical Nurse (LPN) in Bristol, Pennsylvania*fn1 at wages of $8.33 per hour. Claimant along with her husband had purchased a home in western Pennsylvania two years earlier, and in March of 1984 applied for a part-time position in western Pennsylvania (Titusville)*fn2 as an LPN at $6.49 an hour. Claimant was offered the position on June 4, 1984, accepted the offer, and her starting

[ 95 Pa. Commw. Page 116]

    date was set for July 16, 1984. Claimant terminated her employment with Lower Bucks Hospital (Employer) on June 27, 1984. More than a week later, Claimant was informed by letter dated July 6, 1984 that because of low occupancy at Titusville Hospital the position she had been offered was no longer available.*fn3

The above stated facts are not in dispute. The issue presented is whether these facts indicate a necessitous and compelling reason for terminating employment under Section 402(b) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. 802(b).

The referee found that Claimant was actually offered the Titusville position. He reasoned, however, that because the position paid less and was part-time, Claimant did not "meet the test of Section 402(b). . . ." Hence, benefits were denied and the Board summarily affirmed the referee's decision.

Claimant bears the burden of proving necessitous and compelling reasons for the quit. Antonoff v. Unemployment Compensation Board of Review, 54 Pa. Commonwealth Ct. 239, 420 A.2d 800 (1980). Our scope of review, of course, includes errors of law. Section 704 of the Administrative Agency Law, 2 Pa. C.S. ยง 704.

"The receipt and acceptance of a firm offer of employment does constitute termination for cause of a necessitous and compelling nature." Antonoff at 241, 420 A.2d at 801. The referee clearly found that a firm offer had been made. Certainly Claimant could not

[ 95 Pa. Commw. Page 117]

    perform the two jobs at two ends of the state simultaneously. Hence, she had necessitous and compelling reasons for quitting. Once the referee determined that a valid offer had been made and accepted he erred in going further and considering Claimant's reasons for accepting the other job and in considering the conditions of the employment in Titusville. The relevant consideration was the reason for the quit, i.e., the new job,*fn4 not the reason for the desire to transfer. This reason is itself necessitous and compelling as a matter of law. Antonoff. The decision of the Board is reversed.*fn5

Order

Now, February 11, 1986, the order of the Unemployment Compensation Board of Review, No. B-236397, dated December 3, 1984, is hereby reversed.

Judge Barry dissents.

Disposition

Reversed.


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