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Karwowski v. Unemployment Compensation Board of Review

Commonwealth Court of Pennsylvania

September 12, 2013

Dale A. Karwowski, Petitioner
v.
Unemployment Compensation Board of Review, Respondent

Submitted: May 31, 2013

BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION

ROCHELLE S. FRIEDMAN, Senior Judge

Dale A. Karwowski (Claimant) petitions for review, pro se, of the November 14, 2012, order of the Unemployment Compensation Board of Review (UCBR) affirming the referee's decision to deny Claimant unemployment compensation (UC) benefits. The UCBR determined that Claimant was ineligible for benefits under section 402(b) of the Unemployment Compensation Law (Law)[1]because he voluntarily quit his employment without cause of a necessitous and compelling nature. We reverse.

Claimant worked for the North Carolina State Auditor General (Employer) from April 30, 2012, through May 16, 2012.[2] (UCBR's Findings of Fact, No. 1.) Claimant lived 120 miles from the jobsite and commuted five hours per day. (Id., No. 2.) Claimant accepted the job knowing of the commute. (Id., No. 3.)

Before starting the job, Claimant searched for an apartment closer to work but found the cost range to be too expensive for him to pay, in light of the fact that Claimant was trying to maintain his current residence.[3] (Id., No. 4.) After starting the job, Claimant continued to look for an apartment and also sought help from Employer's human resources department. (Id., No. 5.)

For two weeks, Claimant completed the five-hour, round-trip commute. (N.T. at 8.) Claimant testified that he suffered severe anxiety and stress because of the commute. (Id.) He was vomiting at work, and his family grew concerned about his safety. (Id.) The travelling adversely impacted his sleep, and several times he nearly fell asleep on the drive home. (Id. at 9.) On May 16, 2012, Claimant voluntarily quit, telling Employer that he was taking his career in a different direction. (UCBR's Findings of Fact, No. 9.)

Claimant applied for UC benefits with the local service center, which denied benefits pursuant to section 402(b) of the Law. Claimant appealed this determination to a referee. The referee held a hearing on August 10, 2012, at which only Claimant testified and presented evidence, and affirmed the denial on September 5, 2012.

Claimant appealed to the UCBR. On November 14, 2012, the UCBR affirmed the referee's decision, finding Claimant ineligible for benefits under section 402(b) of the Law. Claimant petitioned this court for review.[4]

Claimant argues that the UCBR erred in concluding that he did not have a necessitous and compelling cause for voluntarily quitting his employment. We agree.

Only Claimant testified at the hearing. Although Employer attended the hearing, Employer presented no evidence, conducted no cross-examination, and made only one short closing statement.[5] The UCBR heard no additional testimony before it rendered its decision.

Claimant challenges the UCBR's Finding of Fact Number 6, which states: "The claimant spoke with a human resources representative, who referred the claimant to another employee who had found an apartment near the employer's site, at a reasonable price." (UCBR's Findings of Fact, No. 6 (emphasis added).) Claimant argues that no evidence supports the UCBR's introduction of the "at a reasonable price" language. We agree. Claimant testified that he could not find an affordable apartment. There was no other evidence about the cost of nearby apartments. Thus, we agree with Claimant that this finding is not supported by any evidence, and we disregard it insofar as it implies that Claimant could afford a nearby apartment.

Claimant next challenges the UCBR's Finding of Fact Number 7, which states: "The claimant did not consider sharing an apartment with a roommate." (UCBR's Findings of Fact, No. 7.) Nothing in the record indicates that Claimant did or did not consider sharing an apartment with a roommate. Moreover, nothing requires an employee to consider sharing an apartment with a roommate. Thus, we agree with Claimant that this finding is not supported by any evidence, and we disregard it.

Claimant also challenges the UCBR's Finding of Fact of Number 8, which states: "The claimant did not speak to his direct supervisor about the transportation problem." (UCBR's Findings of Fact, No. 8.) However, Claimant discussed the situation with his direct supervisor in order to modify his work schedule. (N.T. Ex. 5 at 2.) Employer presented no contradictory evidence at the ...


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