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October 21, 1997


Appealed From No. B-360804. State Agency, Unemployment Compensation Board of Review.

Before: Honorable Dan Pellegrini, Judge, Honorable James R. Kelley, Judge, Honorable Emil E. Narick, Senior Judge. Opinion BY Judge Pellegrini.

The opinion of the court was delivered by: Pellegrini


FILED: October 21, 1997

Donald Livingston (Claimant) appeals from an order of the Unemployment Compensation Board of Review (Board) affirming the Referee's decision and denying Claimant unemployment compensation benefits because he did not have a necessitous and compelling reason to leave his employment as required by Section 402(b) of the Unemployment Compensation Law (Law). *fn1

Claimant was employed by TMC (Employer) as an over-the-road driver. At the time he entered into employment with TMC, he was a member of the Army Reserves on inactive ready review status. In November 1996, his status was changed from inactive to active, requiring him to attend regular drills assigned to the 630th Transportation Company located in Washington, Pennsylvania, and was notified to report for his first drill at 7 a.m. on Saturday, December 7, 1996. Claimant immediately informed his dispatcher of the day and time of his assignment.

On December 4, 1996, Claimant, along with four other drivers, were each assigned to transport cargo to Mt. Pleasant, Iowa. After the cargo was delivered, the other four drivers were given routes through Ohio directly back to Pennsylvania. Claimant, however, was given a return trip that required him to pick up and deliver cargo that required him to go to Sterling, Illinois, then to Nashville, Tennessee, then to Gallatin, Tennessee, and finally to Odentin, Maryland, making it difficult for him to make his drill duty on time. When he inquired about the route, Claimant was told that this route was the only one available. Upon arriving in Gallatin, Tennessee, on December 6, he informed the dispatcher that he would be unable to make his duty if he followed the scheduled route and went onto Maryland. The dispatcher re-routed Claimant directly back to Pennsylvania so that he could report for drill duty.

On the 800 mile trip back to Pennsylvania, Claimant was delayed by inclement weather and, as he approached the outskirts of Washington, Pennsylvania, already four hours late for the drill, the trailer he was hauling was damaged when he struck a bridge abutment. After the trailer was towed to a garage, it was approximately 4:00 p.m. and Claimant was unable to attend the drill. Although he had already informed his unit twice during the course of the day that he would be late, he tried to contact his unit again with his reasons for not reporting, but because the drill had concluded, no one was at his unit to receive his call.

Not knowing whether he would be considered absent without leave or what disciplinary measures he faced, Claimant, when he called Employer's safety manager that night to discuss the accident, asked for time off on the following Monday so that he could report to his reserve unit to determine his status and to schedule to make up his duty. Employer denied his request because they wanted Claimant to take the damaged trailer to be repaired at a repair shop in Ohio. Because he was not given time off on Monday morning to report to his company and was concerned about his possible AWOL status, Claimant quit his job so that he could clear up his military status. He reported to his reserve unit first thing Monday morning to reschedule his duty. His meeting at the reserve unit lasted approximately two hours. The next day, Claimant contacted Employer in order to get his job back, but Employer refused.

Claimant then applied for unemployment compensation benefits at the Office of Employment Security which granted benefits. Employer appealed, and the Referee reversed and denied benefits because Claimant voluntarily terminated his employment and going to his reserve unit to clear up his status was not a necessitous and compelling reason to do so. Claimant appealed and, despite finding that Claimant quit because of his military obligation and the fact that he was afraid that he would be considered absent without leave, the Board affirmed. Claimant then filed this appeal. *fn2

Claimant contends that the Board erred in finding that the need to see to his military obligations was not a necessitous and compelling reason to terminate his employment. The Board argues that Claimant did not have a reason to quit, because he did not know that he had to report in person or that he was considered absent without leave; just a call was sufficient.

A claimant who has voluntarily terminated his employment may still be entitled to benefits, if he or she shows a necessitous and compelling reason for doing so. Speck v. Unemployment Compensation Board of Review, 680 A.2d 27 (Pa. Commw. 1996). A cause of a necessitous and compelling nature exists where there are circumstances that force one to terminate his employment that are real and substantial and would compel a reasonable person under those circumstances to act in the same manner. Id. Whether the claimant has a necessitous and compelling cause for terminating his employment is a question of law that is fully reviewable by this court. A-Positive Electric v. Unemployment Compensation Board of Review, 654 A.2d 299 (Pa. Commw. 1995).

In Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 378 A.2d 829, 832-833 (1977), our Supreme Court expanded on this rubric by explaining what was and was not a voluntary reason to leave employment, stating:

it can be said that "good cause" for voluntarily leaving one's employment (i.e. that cause which is necessitous and compelling) results from circumstances which produce pressure to terminate employment that is both real and substantial, and which would compel a ...

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