Opinion
No. 1739 C.D. 2013
04-07-2014
Kathleen McNaughton, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Kathleen McNaughton (Claimant) petitions, pro se, for review of an adjudication of the Unemployment Compensation Board of Review (Board) denying her claim for benefits under the Unemployment Compensation Law (Law). In doing so, the Board affirmed the determination of the Referee that Claimant was ineligible for benefits under Section 402(b) of the Law because she quit her job without cause of a necessitous and compelling nature. Because Claimant failed to establish that her husband's relocation to New Jersey was necessary and not a personal choice, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §§751-914.
Section 402(b) of the Law provides, in relevant part, that "[a]n employe shall be ineligible for compensation for any week ... [i]n which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature[.]" 43 P.S. §802(b).
Claimant last worked for UPS Ground Freight (Employer) as an office clerk at its facility near Mechanicsburg, Pennsylvania. She resigned on April 5, 2013, so that she could relocate to Toms River, New Jersey. Claimant applied for unemployment benefits, which were denied by the UC Service Center. Claimant appealed, and a Referee conducted a telephonic hearing on June 13, 2013.
Employer did not participate in the Referee's hearing.
At the hearing, Claimant testified that she had worked for Employer for approximately ten years at the time of her resignation. Claimant and her husband rented an apartment in Etters, Pennsylvania, near Employer's facility. They also own a home in Toms River, New Jersey. Claimant testified that when her husband retired for medical reasons, they decided to relocate to New Jersey and eliminate the financial burden of maintaining two residences. When asked why they did not sell the New Jersey residence, Claimant responded "because ... we were moving here [to New Jersey]. It was an adult area." Notes of Testimony, June 13, 2013, at 7. Claimant asked her supervisor about transferring to one of its facilities in New Jersey and was told that Employer's policy prohibits such a transfer; she would have to resign and reapply for new employment. Claimant tendered her written resignation to Employer on March 5, 2013, and her last day of work was April 5, 2013.
The Referee acknowledged the financial challenge of maintaining two residences but concluded that Claimant had failed to make substantial efforts to maintain her employment because she did not apply for a position with Employer in New Jersey or sell her home there. Concluding that Claimant lacked necessitous and compelling cause to quit her job, the Referee held she was ineligible for unemployment benefits under Section 402(b) of the Law.
On appeal, the Board affirmed on the basis of the Referee's findings of fact and conclusions of law. The Board further explained that
[a]lthough the claimant's spouse's retirement may have been outside his control due to medical issues, his choice to relocate to New Jersey was not, because the claimant presented no evidence that her husband relocated to an assisted living facility, that he required the special services of that facility, or that the facility was more affordable than similar facilities near the Mechanicsburg, Pennsylvania, area.Board Adjudication at 1. Claimant now petitions for this Court's review.
On appeal, Claimant argues that the Board erred in finding that she lacked a necessitous and compelling reason for quitting her job. Claimant contends that her husband had to relocate to their home in New Jersey for medical reasons. As a result, she was forced to quit her job to follow her spouse because they could not afford to maintain two residences. Commuting from New Jersey to Pennsylvania for work was also an insurmountable burden. The Board counters that Claimant failed to sustain her burden of proof under the so-called "follow the spouse doctrine," and that it properly concluded that Claimant's spouse's relocation to New Jersey was born of personal preference and not of necessity. We agree with the Board.
The scope of our review is limited to determining whether the Board's adjudication is in violation of constitutional rights, errors of law were committed, or whether findings of fact are supported by substantial evidence. Kirkwood v. Unemployment Compensation Board of Review, 525 A.2d 841, 843 (Pa. Cmwlth. 1987) (citing 2 Pa. C.S. §704).
A claimant who voluntarily quits her job has the burden of proving that necessitous and compelling reasons motivated that decision. Pennsylvania Gaming Control Board v. Unemployment Compensation Board of Review, 47 A.3d 1262, 1265 (Pa. Cmwlth. 2012). A claimant must show that she acted with ordinary common sense in quitting and that a reasonable effort was made to maintain the employment relationship. Glen Mills Schools v. Unemployment Compensation Board of Review, 665 A.2d 561, 564 (Pa. Cmwlth. 1995). Whether an employee had a necessitous and compelling reason to leave her employment is a question of law reviewable by this Court. Gaming Control Board, 47 A.3d at 1265.
In situations where a claimant terminates employment to follow a relocating spouse, the claimant's burden is satisfied where she shows that she cannot afford to maintain two residences or that the move has resulted in an insurmountable commuting problem. Glen Mills, 665 A.2d at 564. The necessity to move must be caused by circumstances beyond the control of the claimant's spouse and not by personal preference, and the decision to move must be reasonable and made in good faith. Id. Under the above principles, joining a relocated spouse can, under the proper circumstances, constitute cause of a necessitous and compelling nature to leave one's employment. Id.
Here, Claimant testified that her spouse retired due to medical issues, but she offered no evidence that his move to New Jersey was related to those medical issues. For example, Claimant presented no evidence that her spouse was moving to a special facility, such as an assisted living facility. See, e.g., Rolland v. Unemployment Compensation Board of Review, 510 A.2d 408 (Pa. Cmwlth. 1986) (relocating to assisted living facility is a circumstance outside a spouse's control if the spouse required special services of the facility and the facility is more affordable than similar facilities near the employer). Claimant's only testimony was that they chose to keep their house in New Jersey because it is in an "adult area." N.T. 7. Further, Claimant presented no evidence that the New Jersey residence was more affordable than similar residences near Employer. In summary, the Board properly concluded that Claimant failed to demonstrate that her spouse's relocation was caused by circumstances beyond his control and not by personal preference.
In her brief, Claimant argues that her husband's relocation to New Jersey was necessary because his recovery from knee surgery made it difficult for him to navigate the stairs in their Etters apartment. The couple's New Jersey home is one level and is located in an adult community that provides residents with maintenance and transportation. Claimant offered no evidence to support the foregoing assertions at the Referee's hearing; therefore, it is extra record evidence that neither the Board nor this Court may consider. Pennsylvania Turnpike Commission v. Unemployment Compensation Board of Review, 991 A.2d 971, 974 (Pa. Cmwlth. 2009). --------
For all of the foregoing reasons, we affirm the order of the Board holding that Claimant was ineligible for benefits under Section 402(b) of the Law, 43 P.S. §802(b).
/s/_________
MARY HANNAH LEAVITT, Judge
ORDER
AND NOW, this 7th day of April, 2014, the order of the Unemployment Compensation Board of Review in the above-captioned matter, dated August 29, 2013, is AFFIRMED.
/s/_________
MARY HANNAH LEAVITT, Judge