Summary
holding that claimant was not entitled to UC benefits when employer moved 36 miles farther from claimant
Summary of this case from Flick v. Unemployment Comp. Bd. of ReviewOpinion
Argued May 5, 1978
June 6, 1978.
Unemployment compensation — Scope of appellate review — Findings of fact — Substantial evidence — Voluntary termination — Cause of a necessitous and compelling nature — New job location — Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897.
1. In an unemployment compensation case where the party with the burden of proof fails to prevail below, review by the Commonwealth Court of Pennsylvania is to determine whether necessary findings of fact are supported by substantial evidence. [630]
2. An employe who leaves employment rather than report to work at a new job site thirty-six miles away is properly found to have voluntarily terminated employment without a cause of a necessitous and compelling nature and ineligible for benefits under the Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897. [630]
Argued May 5, 1978, before Judges MENCER, ROGERS and DiSALLE, sitting as a panel of three.
Appeal, No. 2043 C.D. 1976, from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of William F. McCann, Sr., No. 136202.
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.
David B. Washington, for petitioner.
Susan Shinkman, Assistant Attorney General, with her James Bradley, Assistant Attorney General, Sydney Reuben, Assistant Attorney General, and Robert P. Kane, Attorney General, for respondent.
William McCann has appealed from an order of the Unemployment Compensation Board of Review affirming a referee's decision denying benefits on the ground that he had voluntarily terminated his employment without cause of a necessitous and compelling nature. See Section 402 (b)(1) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P. S. § 802 (b)(1).
McCann was employed by the Breda Miller Freight System (Breda Miller) as a part-time dispatcher at the company's Millvale terminal. He had been hired by his son who was the terminal manager and was his supervisor. The Millvale terminal was closed and its operations moved to Canonsburg, Pennsylvania, some 36 miles distant. McCann never appeared for work at the new location. He filed a timely application for unemployment benefits alleging that Breda Miller had effectively discharged him by failing expressly to offer him a position at the new location. The referee found that there was continuing work available for McCann at the new site and that McCann had voluntarily terminated his employment because he didn't want to commute to the new location. The Board of Review affirmed the referee and we now affirm the Board of Review.
The claimant has never asserted that he voluntarily left his work for cause of compelling or necessitous nature.
Where the party with the burden of proof lost, the scope of review of the record is limited to a determination of whether the findings of fact are supported by substantial evidence. Lippy v. Unemployment Compensation Board of Review, 32 Pa. Commw. 251, 378 A.2d 1048 (1977). McCann contends that there is no evidence supporting the finding that he quit his employment with Breda Miller because he did not think it worthwhile to commute to the new job site. On the contrary, the record shows that McCann reported to his son with respect to his work at Breda Miller and that the son was well aware that there was work available for McCann at the Canonsburg terminal. The son, called as a witness by McCann, testified: "He could have gone [to Canonsburg] if he wanted to. . . ." In addition, when asked by the referee, "Did you tell [Breda Miller] that your father would not be going [to Canonsburg] too?" McCann's son answered, "Yes, I told them that it was just too costly for parttime work."
Order affirmed.
ORDER
AND NOW, this 6th day of June, 1978, the order of the Unemployment Compensation Board of Review dated October 28, 1976 is affirmed.