Opinion
No. 284 C.D. 2012
11-07-2012
Erin M. Kochel, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Erin M. Kochel (Claimant) petitions for review from the Order of the Unemployment Compensation Board of Review (Board) that affirmed the Unemployment Compensation Referee's (Referee) Decision and Order finding Claimant ineligible for unemployment compensation (UC) benefits pursuant to Section 402(b) of the Unemployment Compensation Law (Law) because she lacked necessitous and compelling reason to quit her job. Claimant argues that she had necessitous and compelling cause to quit her job with Restek Corporation (Employer) in State College, Pennsylvania, so that she could move to be with her husband, who relocated to McLean, Virginia to take a better-paying job. Because there is substantial evidence supporting the Board's determination that Claimant's husband moved as a result of personal preference, rather than due to circumstances beyond his control, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended 43 P.S. § 802(b).
Claimant applied for UC benefits with the Erie UC Service Center on August 16, 2011. The Service Center denied her application, and Claimant appealed this denial to the Referee. After a telephone hearing on October 21, 2011, at which only Claimant participated, the Referee made the following findings of fact:
1. [C]laimant was last employed at [Employer] as a full-time HR specialist at the rate of $23.75 per hour from April 11, 2005 through her last day worked of August 4, 2011.(Referee Decision, Findings of Fact (FOF) ¶¶ 1-5.) The WCJ held that Claimant was disqualified from receiving benefits because her husband changed jobs and, therefore, had to relocate due to his personal preference rather than due to circumstances beyond his control. (Referee Decision at 2.) Claimant appealed the Referee's Decision to the Board, which adopted the Referee's Decision as its own. (Board Order at 1.) Claimant now petitions this Court for review.
2. [C]laimant had previously lived in the State College area with her husband who had a job at Carnegie House as a full-time assistant general manager at the yearly salary of $35,000.
3. [C]laimant's husband voluntarily left his employment at Carnegie House to begin working at SRA International as a full-time consultant/analyst at the annual salary of $65,000 beginning on June 20, 2011.
4. [C]laimant's husband relocated to McLean, Virginia on June 17, 2011[,] in order to begin his new employment in Arlington, VA.
5. [C]laimant relocated to McLean, VA with her husband on August 5, 2011[,] after voluntarily ending her employment with [Employer].
"This Court's review in an unemployment case is limited to a determination of whether constitutional rights were violated, errors of law were committed, or essential findings of fact were not supported by substantial evidence." Dopson v. Unemployment Compensation Board of Review, 983 A.2d 1282, 1284 n.2 (Pa. Cmwlth. 2009).
Before this Court, Claimant argues that the Board and the Referee erred in determining that her husband changed jobs out of personal choice because he was underpaid and this was causing the couple financial hardship. Generally, "where a claimant terminates employment due to a move to join a relocating spouse, the claimant's burden is satisfied if an economic hardship in maintaining two residences is demonstrated, or that a move has resulted in an insurmountable commuting problem." Glen Mills School District v. Unemployment Compensation Board of Review, 655 A.2d 561, 564 (Pa. Cmwlth. 1995) (citing Lechner v. Unemployment Compensation Board of Review, 639 A.2d 1317 (Pa. Cmwlth. 1994)). However, "[t]he necessity to move must be caused by circumstances beyond the control of the claimant's spouse and not by personal preference." Id. (emphasis added).
Here, the Referee and the Board determined that Claimant's husband changed his job due to his personal preference rather than due to circumstances beyond his control. (Referee Decision at 2; Board Order.) This determination is supported by Claimant's testimony that he took the position with SRA International because it would allow him to better utilize his education, had better hours, and better pay. (Referee Hr'g Tr. at 4.) This Court has held that a spouse's move to accept a better job does not constitute necessitous and compelling cause for a claimant to follow the spouse and terminate employment. Gaunt v. Unemployment Compensation Board of Review, 510 A.2d 895, 896 (Pa. Cmwlth. 1986) (holding that even though the claimant "demonstrated economic hardship or an insurmountable commuting problem" her voluntary quit was not justified where her husband moved in order to accept a promotion that advanced his career). See also Frei v. Unemployment Compensation Board of Review, 551 A.2d 669, 670-71 (Pa. Cmwlth. 1988) (holding that where claimant and her husband relocated, in part, in order to be able to operate the husband's import-export business out of the house and, thus, provide husband "the best economic opportunity," this constituted only personal preference).
In response to the Referee's question, "So he [Claimant's husband] took that job basically to better himself?," Claimant responded:
He did, yes. He had obtained his master's degree a couple of years ago and was trying to find a position that would better utilize his degree and also be able to have higher earning potential but[,] yes, those were the reasons for him leaving his previous employment. Also in the hospitality industry he was on call 100 percent of the time. And the hours and so forth were not ideal[,] but those were other reasons as to why he accepted other employment. He also[,] based on pay[,] was[,] I think[,] being underpaid as well given the position he held.
Claimant argues that it was necessary for her husband to find a higher-paying job in order to "pay for expenses and improve [our] quality of life." (Claimant's Br. at 5.) However, Claimant did not testify or otherwise offer evidence that the couple was experiencing financial hardship with their combined salaries. Rather, Claimant testified that her husband was "underpaid," and "wanted to better himself in order to use his degree." (Referee Hr'g Tr. at 4-5.) While these are valid, and laudable, reasons to change jobs, they still relate to personal preference rather than circumstances beyond her husband's control. We must, therefore, affirm the Order of the Board.
Claimant also argues that she showed that, after her husband moved, the couple could not afford to maintain both households, and that Employer did not oppose her claim for benefits. Because we uphold the Board's determination that Claimant's husband changed jobs due to personal preference rather than circumstances beyond his control, it is not necessary for this Court to reach the issue of whether maintaining two households would cause the couple financial hardship. In addition, while Employer did not appear at the hearing to oppose Claimant's application for benefits, "the Board has a duty to protect the unemployment compensation fund from ineligible claimants and to investigate all the facts in a given case." Kiehl v. Unemployment Compensation Board of Review, 747 A.2d 954, 957 (Pa. Cmwlth. 1999). --------
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, November 7, 2012, the Order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge
(Referee Hr'g Tr. at 4.)