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MARY E. KURTZ v. COMMONWEALTH PENNSYLVANIA (10/17/86)

decided: October 17, 1986.

MARY E. KURTZ, 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 Mary E. Kurtz, No. B-237722-B.

COUNSEL

James L. Cowden, Handler, Gerber, Johnston, Strokoff & Cowden, for petitioner.

Samuel H. Lewis, Associate Counsel, with him, Paul E. Baker, Acting Deputy Chief Counsel, for respondent.

Judges Craig, Colins and Palladino, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 101 Pa. Commw. Page 300]

Does a claimant remain eligible for unemployment compensation, on the basis that a job termination was for a necessitous and compelling cause, where the claimant has quit in order to marry and join a spouse employed in a distant location?

Claimant Mary E. Kurtz has appealed a denial of her unemployment compensation claim, issued by a referee and the Unemployment Compensation Board of Review on the ground that her unemployment was "due to voluntarily leaving work without cause of a necessitous and compelling nature . . . ." Section 402(b)(1) 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's findings of fact are not in dispute. The claimant worked as an office clerk for the Indiana University of Pennsylvania, at Indiana, Pennsylvania, from January 1977 until June, 1984. She resigned effective June 22, 1984. On June 23, 1984, she married a spouse living and working in Harrisburg, Pennsylvania, where they established their home together.

The claimant relies upon Richards v. Unemployment Compensation Board of Review, 491 Pa. 162, 420 A.2d 391 (1980), for the proposition that "a husband or wife who quits employment to join a spouse at another location, out of economic necessity, is not disqualified from eligibility for unemployment benefits." (Claimant's brief.) Further, the claimant cites this court's leading decision by President Judge Crumlish in Wheeler v. Unemployment Compensation Board of Review, 69 Pa. Commonwealth Ct. 201, 450 A.2d 775 (1982), stating:

[ 101 Pa. Commw. Page 301]

[W]here a spouse relocates due to a change in career or educational objectives, [it] is the other spouse's desire and, traditionally, obligation to accompany the moving spouse to the new locality. This preservation of the family unit, though socially desirable, does not, in itself, give rise to necessitous and compelling reason under § 402(b)(1). See Richards v. Unemployment Compensation Board of Review, 491 Pa. 162, 420 A.2d 391 (1980). To circumvent this limitation on benefits, the following spouse need only show an economic hardship in maintaining two residences or that the move has resulted in an insurmountable commuting problem.

69 Pa. Commonwealth Ct. 201, 205, 450 A.2d 775, 777 (1982) (emphasis added). Of course, in Wheeler this court went on to note that, for eligibility, the record must establish that the new living site was beyond the control of ...


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