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GAIL C. FREI v. COMMONWEALTH PENNSYLVANIA (12/22/88)

decided: December 22, 1988.

GAIL C. FREI, 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 Gail C. Frei, No. B-264241.

COUNSEL

Sharon M. Dietrich, Community Legal Services, Inc., for petitioner.

Gary L. Kelley, Assistant Counsel, with him, Clifford F. Blaze, Deputy Chief Counsel, for respondent.

President Judge Crumlish, Jr., Judge McGinley, and Senior Judge Narick, sitting as a panel of three. Opinion by Senior Judge Narick.

Author: Narick

[ 122 Pa. Commw. Page 271]

This is an appeal by Gail C. Frei (Claimant) from a decision of the Unemployment Compensation Board of Review (Board) which denied her benefits pursuant to 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. ยง 802(b) (voluntarily leaving work without cause of a necessitous and compelling nature). We affirm.

Claimant was employed as a teacher for the Germantown Montessori School (Employer) in Philadelphia, Pennsylvania and her annual salary was $12,000. Claimant resigned from her teaching position in order to relocate to Newtown Square, Pennsylvania with her husband. Claimant's husband desired to operate an import-export business from his home because it was not financially feasible to rent a commercial property from which he could operate his business. After attempts to secure a zoning variance and a business license for this business failed, Claimant and her husband moved to Newtown Square. According to the local laws and regulations of Newtown Square, Claimant's husband could operate his business from his home.

[ 122 Pa. Commw. Page 272]

At the hearing before the referee, Claimant testified that Philadelphia local laws and regulations prohibited her husband from operating his business from their home. In support of her testimony, Claimant submitted into evidence the decision of the Philadelphia Department of Licenses and Inspections whereby it refused to issue a business license to Claimant's husband, and a decision of the Zoning Board of Adjustment of Philadelphia whereby it refused to issue a variance to Claimant's husband for purposes of operating an import-export business from his home. Claimant further testified before the referee that the commute by public transportation from Newtown Square to the school would take 2 to 2 1/2 hours, that she and her husband could not afford two cars, that their only car was needed by Claimant's husband in his business and that she and her husband were not financially able to maintain two households.

The referee concluded that Claimant failed to present cause of a necessitous and compelling nature for terminating her employment -- the evidence merely indicated that Claimant's husband moved to Newtown Square because it was financially feasible but not necessarily imperative, and that the decision to move was by choice. The Board affirmed and this appeal followed.

Claimant presents two issues for our consideration: (1) whether the Board's finding that the relocation of Claimant's spouse was brought about by pure personal preference is supported by substantial evidence and (2) whether the requirement in a "following spouse" case such as this whereby a claimant must establish that she relocated for reasons beyond her husband's control violates the equal protection and due process clauses of the United States Constitution.

Our scope of review of the Board's decision where both parties have presented evidence before the referee is limited to determining ...


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