Summary
concluding a 60 mile commute, taking three hours, is not sufficient cause for voluntary quit
Summary of this case from Bauer v. Unemployment Comp. Bd. of ReviewOpinion
Argued May 7, 1980
June 10, 1980.
Unemployment compensation — Necessitous and compelling cause for termination — Transportation inconvenience — Burden of proof.
1. In an unemployment compensation case, it cannot be said as a matter of law that a sixty-mile commute to work, without more, automatically requires a finding of necessitous and compelling cause for termination. [139]
2. In an unemployment compensation case, transportation inconveniences may provide a necessitous and compelling cause for leaving employment only where they are so serious and unreasonable as to present a virtually insurmountable problem, and the claimant must demonstrate that he or she took reasonable steps to remedy or overcome the transportation problems prior to severing the employment relationship. [140]
3. Where an unemployment compensation claimant presents no specific or empirical evidence as to the impossibility of solving an admittedly substantial commuting problem, the referee does not capriciously disregard competent evidence in concluding that the claimant has failed to meet his heavy burden of proving that the transportation difficulty was virtually insurmountable. [140]
Argued May 7, 1980, before Judges WILKINSON, JR., CRAIG and WILLIAMS, JR., sitting as a panel of three.
Appeal, No. 2885 C.D. 1978, from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Gary Musguire, No. B-165713.
Application to the Office of Employment Security for unemployment compensation benefits. Application denied. Applicant appealed to the Unemployment Compensation Board of Review. Appeal denied. Applicant appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
John R. Seltzer, Jamison, Seltzer, Harper Leone, for petitioner.
Elsa Newman-Silverstine, with her Gary J. Marini, Assistant Attorneys General, Richard Wagner, Chief Counsel and Edward G. Biester, Jr., Attorney General, for respondent.
Claimant Gary Musguire appeals from the Unemployment Compensation Board of Review's order disallowing his appeal from the referee's determination that, under Section 402(b)(1) of the Unemployment Compensation Law, 43 P. S. § 802(b)(1), he was ineligible for benefits because he voluntarily terminated his employment without necessitous and compelling cause.
Act of December 5, 1937, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P. S. § 802(b)(1).
Claimant was employed as a truck driver, at an hourly rate of $8.44, with Refiners Transport Terminal Corporation. He was initially assigned to runs originating in West Middlesex, Pennsylvania. In July, 1978, that employer transferred claimant to the Oil City terminal, because of a business slowdown as to the West Middlesex runs. Claimant quit because the transfer would have required him to commute sixty miles between his home and the terminal each day.
Claimant contends that, because his job itself requires ten to twelve hours driving each day, an additional three-hour daily commute to work and back would create a potential safety hazard to himself and others on the highways.
However, we cannot say as a matter of law that a sixty-mile commute to work, without more, automatically requires a finding of necessitous and compelling cause for termination.
Although not controlling here, in Shaw v. Unemployment Compensation Board of Review, Pa. Commonwealth Ct. ___, ___, 406 A.2d 608, 609 (1979), this court held that when an employee knew at the time he accepted employment that the work site was 100 miles from his residence, his subsequent termination was without cause of necessitous and compelling nature. We said there that:
This is admittedly a close case, since the need to travel 200 miles each day to engage in work surely indicates a serious question as to the suitability of the work. However, when one considers the claimants hourly wage of $11.10 and the possibility of relocating, in order to retain a well-paying job and to eliminate the transportation problem, we are not persuaded that his job . . . was unsuitable work.
Transportation inconveniences may provide a necessitous and compelling cause for leaving employment only where they are "so serious and unreasonable as to present a virtually insurmountable problem and the 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, 463, 401 A.2d 12, 13 (1979); Correa v. Unemployment Compensation Board of Review, 31 Pa. Commw. 13, 374 A.2d 1017 (1977).
We have found it necessary to give very serious thought to claimant's rather compelling safety hypothesis. But it is only an hypothesis, we have concluded, and that is the fatal weakness in claimant's position. Claimant did not try commuting to the new terminal location, even for a single day. Nor did claimant indicate the absence of alternative commuting means. Hence, claimant presented no specific or empirical evidence as to the impossibility of solving the admittedly substantial commuting problem.
Therefore, the referee did not capriciously disregard competent evidence in concluding that claimant failed to meet his heavy burden to prove that the transportation difficulty was virtually insurmountable.
Therefore, we affirm the order of the board.
ORDER
AND NOW, this 10th day of June, 1980, the order of the Unemployment Compensation Board of Review (B-165713) dated November 14, 1978, is affirmed.