Kieley v. Commonwealth

Opinion by Judge Barbieri, Susan M. Kieley (Claimant) comes before this Court seeking review of an order of the Unemployment Compensation Board of Review sustaining the decision of a referee denying benefits on the ground of Claimant’s ineligibility under Section 402(b) of [620] the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(b). We will affirm. Claimant voluntarily terminated her employment as rental and leasing manager for an automobile dealer after serving in that capacity for eight weeks. The record shows that Claimant agreed to accept the position on a temporary basis as a favor to a former supervisor, and that she was then offered a permanent position when she performed her duties well. A claimant seeking benefits, of course, who has voluntarily terminated his or her employment, has the burden of proving that he or she had a necessitous and compelling reason for taking this action. Cowls v. Unemployment Compensation Board of Review, 58 Pa. Commonwealth Ct. 150, 417 A.2d 722 (1981). “ [S]ueh a claimant must establish that he made a reasonable effort to preserve his employment and that he had no real choice but to leave his employment.” Id. at 153, 427 A.2d at 723. Here, the referee found as a fact based on Claimant ’s testimony that ‘ ‘ Claimant voluntarily terminated her position because it was too far to drive (50 miles one way) and because her parents were ill and her help was needed at home. ’ ’ With respect to the question of distance, we have held that even a sixty mile commute to work, without more, is not a necessitous and compelling reason for terminating employment, Musguire v. Unemployment Compensation Board of Review, 52 Pa. Commonwealth Ct. 137, 415 A.2d 708 (1980), and we similarly believe here that a reasonable person would not have terminated his or her employment simply because the employment was located fifty miles away. Similarly, we do not believe that Claimant enunciated sufficient “personal” reasons to meet her bur [621] den of establishing a necessitous and compelling reason for terminating her employment. Before the referee Claimant, who is single, testified that her parents, her brother, and herself lived on her parents.’ farm in Lancaster County. Claimant further testified that her mother was receiving kidney dialysis, that her father had a number of eye operations, and that she did not feel comfortable being away from home. The only testimony offered as to the nature of her home responsibilities was Claimant’s statement that she had “other responsibilities at home as a housewife, taking care of the house and the laundry, cleaning, and so on and so forth.” While it is indeed true that domestic obligations can, in certain extenuating circumstances, constitute a necessitous and compelling reason for terminating employment, where they compel an individual to leave his or her job, Davis v. Unemployment Compensation Board of Review, 69 Pa. Commonwealth. Ct. 585, 452 A.2d 93 (1982) (Illness of spouse who required constant care); Wallace v. Unemployment Compensation Board of Review, 38 Pa. Commonwealth Ct. 342, 393 A.2d 43 (1978) (Inability to find child care servicesi for two minor children during a night shift), such extenuating circumstances are not present here. Instead, we believe that the present case is most similar to our decision in Colachino v. Unemployment Compensation Board of Review, 70 Pa. Commonwealth Ct. 353, 453 A.2d 72 (1982), where we held that a claimant who refused to work overtime because his “parents [were] old and under the doctor’s care” and because he had “things to do around the house” was ineligible for benefits because of willful misconduct. Although decided under Section 402(e) of the Law, 43 P.S. §802 (e), we believe our reasoning in Colachino is equally applicable here. We shall accordingly affirm. [622] Order Now, March 6, 1984, the order of the Unemployment Compensation Board of Review at Decision No. B-210799, dated October 14, 1982, is affirmed.