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08/19/97 SUSAN NIMITZ v. UNEMPLOYMENT COMPENSATION

August 19, 1997

SUSAN NIMITZ, PETITIONER
v.
UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appealed From No. B-357907. State Agency Unemployment Compensation Board of Review.

Before: Honorable Doris A. Smith, Judge, Honorable James R. Kelley, Judge, Honorable Charles P. Mirarchi, Jr., Senior Judge. Opinion BY Judge Kelley.

The opinion of the court was delivered by: Kelley

OPINION BY JUDGE KELLEY

FILED: August 19, 1997

Susan Nimitz (claimant) appeals from an order of the Unemployment Compensation Board of Review which reversed the decision of the referee and denied claimant benefits. We affirm.

Claimant was employed as a certified nurse's aide by Kinkora Pythian Corporation (employer) from August 1995 until her last day of work on August 23, 1996 at an hourly rate of $6.80. Claimant lived and worked in Duncannon, Pennsylvania. Claimant resided with her son and her roommate. *fn1 The living expenses were shared between claimant and the roommate. Claimant was responsible for the electricity and day-care expenses as well as some incidentals.

Claimant's roommate was involuntarily transferred to Johnstown, Pennsylvania by his employer, Conrail. Claimant, unable to independently support herself and her son, voluntarily terminated her position with the employer in order to follow her roommate to Johnstown. Claimant then filed for unemployment compensation benefits.

Claimant's application for benefits was denied by the Job Center. Claimant appealed and the matter was heard before a referee.

The referee found that the living arrangement between claimant and her roommate was that of a "family" and that claimant voluntarily quit her employment in order to follow her roommate to his new job. The referee further found that the roommate's transfer was necessary and beyond his control. Based upon these findings, the referee concluded that claimant had met her burden of proving that a necessitous and compelling reason existed for her voluntary termination and granted claimant benefits.

The employer appealed to the board. The board reversed the referee's decision and denied benefits on the grounds that claimant and her roommate were unmarried. Claimant now appeals to this court. *fn2

The sole issue raised in this appeal is whether the board erred as a matter of law when it denied benefits upon a determination that claimant's termination was not necessitous and compelling because claimant and her roommate were not married.

Section 402 of the Unemployment Compensation Law provides:

An employee shall be ineligible for compensation for any week--

(b) In which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature irrespective of whether or not such work is in "employment" as defined in this Act: Provided, That a voluntary leaving work because of a disability if the employer is able to provide other ...


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