Musguire v. Commonwealth

415 A.2d 708, 52 Pa. Commw. 137, 1980 Pa. Commw. LEXIS 1517

• Court: Commonwealth Court of Pennsylvania
• Decided: June 10, 1980
• Docket: Appeal, No. 2885 C.D. 1978
• Status: Published

Opinion

Opinion by

Judge Craig,

Claimant Gary Musguire appeals from the Unemployment Compensation Board of Review’s order disallowing his appeal from the referee’s determination that, under Section 102(b) (1) of the Unemployment Compensation Law, 43 P.S. §802(b) (l),¹ be was ineligible for benefits because be voluntarily terminated Ms employment without necessitous and compelling cause.

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.²

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. Commonwealth Ct. 461, 463, 401 A.2d 12, 13 (1979); Correa v. Unemployment Compensation Board, of Review, 31 Pa. Commonwealth Ct. 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.

1 Act of December 5, 1937, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802 (b) (1).

2 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.