Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

DARREN J. THOMAS v. COMMONWEALTH PENNSYLVANIA (06/22/89)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: June 22, 1989.

DARREN J. THOMAS, PETITIONER,
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT. BRADLEY W. PEARSON, PETITIONER, V. COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT. TIMOTHY L. BRADLEY, PETITIONER, V. COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT. SCOTTIE K. EDDY, PETITIONER, V. COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT. RICHARD J. HAGADONE, PETITIONER, V. COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT. LOGAN M. WESTON, PETITIONER, V. COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT

PETITION FOR REVIEW (UNEMPLOYMENT COMPENSATION).

COUNSEL

Gerald Sullivan, Northwestern Legal Services, Meadville, for petitioner.

Clifford F. Blaze, Depty. Chief Counsel, Harrisburg, Maribeth Wilt-Seibert, Asst. Counsel, for respondent.

Crumlish, Jr., President Judge, Colins, J., and Narick, Senior Judge.

Author: Crumlish

[ 127 Pa. Commw. Page 61]

Darren Thomas, Bradley Pearson, Timothy Bradley, Scottie Eddy, Richard Hagadone and Logan Weston, petitioners, respectively appeal six Unemployment Compensation Board of Review orders, each of which affirmed the referee and denied benefits. Section 402(b) of the Unemployment Compensation Law; 43 P.S. ยง 802(b).*fn1 We affirm.

Petitioners were employed by Hazlett Tree Service (Hazlett), clearing tree limbs from utility power lines. Hazlett's work sites are by nature temporary and petitioners had each been required to travel long distances to various job sites. When petitioners were assigned to a new, more distant work site, they refused and terminated their employment. Both the referee and the Board determined that petitioners voluntarily quit without cause of a necessitous and compelling nature.

Petitioners initially contend that by deleting certain of the referee's fact findings in several of its decision, the

[ 127 Pa. Commw. Page 62]

Board disregarded essential fact findings based on uncontradicted testimony in violation of our Supreme Court's holding in Treon v. Unemployment Compensation Board of Review, 499 Pa. 455, 453 A.2d 960 (1982). The Board responds that Treon is distinguishable because, there, the Board deleted a key fact-finding reversing the referee's decision. In this case, the Board maintains it has merely omitted nonessential findings in affirming the referee's conclusions that petitioners did not have necessitous and compelling cause to quit. While we find no authority in Treon limiting its application to Board reversals of a referee's decision, considerations of materiality and weight arise when the Board exercises its role as ultimate fact finder. Here, the Board has not disregarded uncontradicted findings on petitioners' commuting problem but in its conclusion has given greater weight to the findings that they failed to investigate the possibility of temporary lodgings at the job site*fn2 or arrange for car-pooling with other employees.

Petitioners further argue that, contrary to the Board's findings of fact, they were not aware that the job would require extensive travel to various job sites. Regardless of whether the extent of traveling was stated at the time of Pearson's hire, Petitioners' lengthy employment with Hazlett*fn3 indicates that they had acknowledged and acquiesced in these employment conditions. See Cardwell v. Unemployment Compensation Board of Review, 77 Pa. Commonwealth Ct. 210, 465 A.2d 145 (1983). The testimony of Hazlett's witness, further establishes the temporary and transient nature of Hazlett's business by indicating that a

[ 127 Pa. Commw. Page 63]

    particular job could begin at one location and end fifty to 100 miles away and that carpooling was available.*fn4

Petitioners assert that the Board failed to make findings essential to determining whether the increased commuting distance represented an insurmountable obstacle to continued employment. Quality Building Services, Inc. v. Unemployment Compensation Board of Review, 90 Pa. Commonwealth Ct. 495, 498 A.2d 1 (1985).*fn5 The Board concedes that it did not make these precise inquiries but counters that Quality Building Services does not apply because the job relocation here was not permanent. We agree with the Board.

In Quality Building Services, an employee refused a reassignment for an indefinite duration to a work site twenty miles farther from her home. Petitioners' job, on the other hand, by its nature involved temporary assignment to numerous locations. Therefore, the strict application of the factors delineated in Quality Building Services is not required. Moreover, a review of the Board's decision indicates that it adequately considered factors such as driving time, distance and alternative accommodations in each of these cases.*fn6

Lastly, petitioners contend that the increased traveling time and distance, corresponding costs, and the disruptive

[ 127 Pa. Commw. Page 64]

    effect on their families constitute, as a matter of law, necessitous and compelling cause. We disagree. Transportation inconvenience may justify a voluntary quit only if it presents an insurmountable barrier to further employment despite an employee's reasonable effort to remedy it. Frable v. Unemployment Compensation Board of Review, 53 Pa. Commonwealth Ct. 137, 416 A.2d 1164 (1980). Petitioners had heretofore been required to travel to various job sites which, because of the character of utility power lines, extend over long distances.

Petitioners, who have the burden to demonstrate necessitous and compelling cause to quit, Chamoun v. Unemployment Compensation Board of Review, 116 Pa. Commonwealth Ct. 499, 542 A.2d 207 (1988), have failed to show that the distance to the new work site is so out of proportion to the original travel conditions as to constitute a material change necessitating their quit. Cardwell (five-week assignment involving one-way commute of 170 miles not necessitous and compelling cause). Stratford v. Unemployment Compensation Board of Review, 78 Pa. Commonwealth Ct. 54, 466 A.2d 1119 (1983) (three to four week assignment to location eighty-seven miles away.)

Accordingly, we affirm.

Order

The Unemployment Compensation Board of Review order No. B-268699 dated September 19, 1988, is affirmed.

Order

The decision of the Unemployment Compensation Board of Review, No. B-267442-B, dated October 5, 1988, is affirmed.

Order

The Unemployment Compensation Board of Review order, No. B-269494 dated October 27, 1988, is affirmed.

[ 127 Pa. Commw. Page 65]

ORDER

The Unemployment Compensation Board of Review, order, No. B-269496 dated October 27, 1988, is affirmed.

Order

The Unemployment Compensation Board of Review order, B-269495 dated October 27, 1988, is affirmed.

Order

The Unemployment Compensation Board of Review order, No. B-269493 dated October 27, 1988, is affirmed.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.