Summary
In Mitchell v. Unemployment Compensation Board of Review, 45 Pa. Commw. 291, 405 A.2d 598, 600 (1980), for example, we recently shut the door on a claimant's attempt to present an alternative basis for compensation because it had not been presented below.
Summary of this case from Wing v. Unempl. Comp. Bd. of ReviewOpinion
Argued May 11, 1979
August 30, 1979.
Unemployment compensation — Voluntary termination — Cause of a necessitous and compelling nature — Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897 — Transportation inconvenience — Questions not raised below.
1. An employe voluntarily terminating his employment without cause of a necessitous and compelling nature is ineligible for benefits under the Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897. [292]
2. Transportation inconvenience may provide a necessitous and compelling cause for terminating employment so that an employe so leaving employment could remain eligible for unemployment compensation benefits, but only when such problem is so serious as to present an insurmountable problem, when the employe has taken reasonable steps to solve the problem before termination and when the employe has conducted himself in these efforts in a manner consistent with that of a person desiring to continue employment. [293-4]
3. In an unemployment compensation case matters not raised below cannot be considered on appeal by the Commonwealth Court of Pennsylvania. [294]
Argued May 11, 1979, before Judges BLATT, DiSALLE and MacPHAIL, sitting as a panel of three.
Appeal, No. 1790 C.D. 1977, from the Order of the Unemployment Compensation Board of Review in case in In Re: Claim of Charles E. Mitchell, No. B-147638.
Application to the Bureau of Employment Security for unemployment compensation benefits. Application denied. Applicant appealed to the Unemployment Compensation Board of Review. Denial affirmed. Applicant appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Frederick W. Heintz, for appellant.
Charles G. Hasson, Assistant Attorney General, with him Richard Wagner, Chief Counsel, and Edward G. Biester, Jr., Acting Attorney General, for appellee.
The appellant was denied unemployment compensation benefits by the Bureau of Employment Security on the basis that he had voluntarily terminated his employment without cause of a necessitous and compelling nature and so was barred from receiving benefits under the provisions of Section 402(b)(1) of the Unemployment Compensation Law (Act). This holding was affirmed on appeal by the referee and by the Unemployment Compensation Board of Review (Board). This appeal followed.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P. S. § 802(b)(1).
The record indicates that the appellant had been employed by Seven Springs Farms (Seven Springs) for four years as a ski mechanic. When originally employed, he had lived in West Connellsville, Pa. which required a 64-mile round-trip to Seven Springs. At that time both he and his wife were employed at the same place and made the trip together. Because of a change in domestic circumstances, however, his wife's employment was discontinued and the couple moved to Mellcroft, which required only a 14-mile round trip to Seven Springs. Subsequently, however, they were required to vacate the apartment in Mellcroft and they moved back to Connellsville so that he again had a long round-trip to make. He testified that he had looked for another residence closer to Seven Springs but was unable to find an acceptable location because available homes were too expensive, and he further testified that he would have had no place to store extra furniture if he had moved into a trailer court where housing was available. He asked for an increase in wages to compensate for his additional traveling costs, which his employer was unable to grant, and he then terminated his employment. This was two weeks following his move to Connellsville. He says that he had to quit because he could not afford the cost of transportation to and from his work.
The law is clear that, while transportation inconveniences may provide a necessitous and compelling cause of leaving employment, they must be so serious and unreasonable as to present a virtually insurmountable problem. Simpson v. Unemployment Compensation Board of Review, 39 Pa. Commw. 246, 395 A.2d 309 (1978). It is also required that a claimant must demonstrate that he or she took reasonable steps to remedy or overcome the transportation problems prior to severing the employment relationship. Lee v. Unemployment Compensation Board of Review, 42 Pa. Commw. 461, 401 A.2d 12 (1979). It is noteworthy here that the appellant continued working for only two weeks following his move back to Connellsville, and there is nothing in the record to indicate that he investigated the possibilities of a car-pooling arrangement or public transportation which probably could have reduced the cost of commuting and made the transportation cost not so economically burdensome. Szojka Unemployment Compensation Case, 187 Pa. Super. 643, 146 A.2d 81 (1958). When the appellant here began his work at Seven Springs, he commuted approximately the same distance which was required at the time he quit work, and it may therefore be presumed that the commuting distance originally was acceptable. Moreover, the choice to move back to a residence requiring a similar commuting distance, after he had moved out of the Mellcroft residence, was his. The Referee and the Board apparently believed that his conduct was not consistent with that of a person who desires to continue employment, see Faulkner Unemployment Compensation Case, 200 Pa. Super. 398, 188 A.2d 803 (1963), and did not evidence a " 'sincere desire for work that will overcome the surmountable obstacles which workers everywhere encounter.' Zupancic Unemployment Compensation Case, 186 Pa. Super. 252, 256, 142 A.2d 395, 397 (1958)." Szojka Unemployment Compensation Case, 187 Pa. Super. at 645-46, 146 A.2d at 83.
The appellant argues for the first time here that he was forced to leave his employment due to domestic obligations and so would still be eligible for benefits pursuant to Section 402(b)(2) of the Act. 43 P. S. § 802(b)(2). The Bureau, the referee and the Board, however, found the appellant to be ineligible under Section 402(b)(1), and we will not therefore consider this newly advanced argument here on appeal.
We will affirm the conclusion of the Board that the appellant failed to establish that he had a cause of necessitous and compelling nature for voluntarily leaving his work and that he is therefore barred from benefits by the provisions of Section 402(b)(1) of the Act. 43 P. S. § 802(b)(1).
ORDER
AND NOW, this 30th day of August, 1979, the order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby affirmed.