          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Daniel J. Leason,                          :
                           Petitioner      :
                                           :
             v.                            :   No. 223 C.D. 2018
                                           :   Submitted: August 31, 2018
Unemployment Compensation                  :
Board of Review,                           :
                    Respondent             :


BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE PATRICIA A. McCULLOUGH, Judge
        HONORABLE JAMES GARDNER COLINS, Senior Judge



OPINION BY JUDGE BROBSON                       FILED: November 21, 2018


             Petitioner Daniel J. Leason (Claimant) petitions, pro se, for review of
an order of the Unemployment Compensation Board of Review (Board). The Board
affirmed the Unemployment Compensation Referee’s (Referee) decision, which
denied Claimant unemployment compensation benefits pursuant to Section 402(b)
of the Unemployment Compensation Law (Law),1 relating to voluntary separation
without cause of a necessitous and compelling nature. For the reasons set forth
below, we now affirm the Board’s order.
             Claimant worked for Havis, Inc. (Employer) as a full-time Inside Sales
Representative. (Certified Record (C.R.), Item No. 10 at 2.) Claimant voluntarily
separated from Employer on August 4, 2017, to relocate to Gainesville, Florida, with


      1
        Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 802(b).
his spouse who accepted a full-time position there as an art teacher at a school. (Id.
at 2-3.) Shortly thereafter, Claimant filed for unemployment compensation benefits.
The Altoona Unemployment Compensation Service Center (Service Center) issued
a determination, finding Claimant ineligible for benefits due to his inability to prove
a necessitous and compelling reason for terminating his employment. (C.R., Item
No. 4 at 1.) Claimant then appealed the Service Center’s decision, and the Referee
conducted an evidentiary hearing. (C.R., Item Nos. 5, 10.)
             At the evidentiary hearing before the Referee, Claimant participated by
telephone and Employer did not appear. (C.R., Item No. 10 at 1.) Claimant testified
that he voluntarily terminated his employment so that he could move to Florida to
join his spouse. (Id. at 2.) Before leaving the state, Claimant’s spouse was employed
part-time as a teacher, but she was unable to find a full-time position in the field in
which she was trained, i.e., as an art teacher. (Id. at 3.) Claimant testified that his
spouse, therefore, moved to Florida because she had the opportunity to be employed
as a full-time art teacher. (Id.) Claimant “followed [his spouse] down to Florida so
she could accept that position.” (Id. at 2.)
             With respect to the issues relevant to this appeal, Claimant’s full
testimony on the matter was brief:
             R      Why was August 4th your last day?
             C      My last day was, because my wife accepted a
                    position[,]—she’s a teacher. She accepted a
                    position down in Alachua County in Florida in
                    Gainesville, and I followed her down to Florida, so
                    she could accept that position.
                    ....
             R      Okay and why not stay up here? You were
                    employed. Couldn’t she find a job in Pennsylvania?
             C      Nope that’s fine. I knew that question was coming.
                    There are actually no art teaching positions really in
                                           2
                      Pennsylvania. The question on the form I filled out
                      asked if your wife was employed prior to accepting
                      a position down in Florida. That’s a very black and
                      white question. Yes, she was employed, but
                      working anywhere from two to six hours weekly. It
                      certainly wasn’t economically viable, and again, for
                      her to obtain a full-time teaching position in her
                      chosen field, which is very specific, she’s an art
                      teacher, she actually had to look beyond the state
                      and out of state, really, actually–[inaudible] many
                      months ago. So she was actually able to obtain a
                      full-time position, in a district down here, where she
                      wasn’t able to do so up there, so.
                R     Okay. What else do you want me to know?
                C     That’s really it. The form was–yeah, the form was
                      very black and white. I read the question, you
                      know, answer it truthfully. So, I mean, was she
                      employed? She was, but again it never asked if it
                      was part-time or the hours that were involved, or
                      anything like that. So, that was basically the reason.
                      That was basically, you know, I went on to
                      questions beyond that, but yeah, that was the reason
                      and I certainly hope that’s sufficient.
                      ....
                R     Okay.
                C     And there are no such positions up in Pennsylvania.
                      You know, they’re doing away with a lot of those—
                      you know, music and art programs. The teachers
                      that are there are shared between multiple schools.
                      They don’t leave, so it’s very difficult to obtain, you
                      know, that type of position.              You know,
                      unfortunately, much to the chagrin of her parents.
(Id. at 2-4.)

                After the conclusion of the evidentiary hearing, the Referee issued a
decision, finding Claimant ineligible for unemployment compensation benefits
pursuant to Section 402(b) of the Law. (C.R., Item No. 11.) Claimant then appealed



                                             3
to the Board, which affirmed the Referee’s decision and order. In so doing, the
Board issued the following findings of fact:
              1. Havis, Inc., employed the claimant beginning
                 June 6, 2011, as an inside sales representative.
              2. The claimant’s spouse was employed in Pennsylvania,
                 but accepted a position in Florida.
              3. Effective August 4, 2017, the claimant resigned to
                 follow his spouse to Florida.

(C.R., Item No. 13.) The Board concluded that Claimant was ineligible for benefits
pursuant to Section 402(b) of the Law. The Board reasoned:
              The claimant’s spouse was employed at the time, so her
              decision to accept better employment in Florida was not
              beyond her control. The Pennsylvania courts have
              repeatedly held that an employed spouse’s choice to
              accept better employment, different employment, or a
              voluntary transfer does not create a necessitous and
              compelling reason for the claimant to quit. To receive
              benefits, a claimant’s spouse must be forced to transfer by
              his or her employer. Had the claimant’s spouse been
              unemployed at the time, the Board would be required to
              analyze the duration of her unemployment and the efforts
              she took to find local employment, but those are not the
              facts here.

(Id.) Claimant now petitions this Court for review.
              On appeal,2 Claimant alleges that the Board committed an error of law
by concluding that Claimant failed to prove that he had a cause of a necessitous and
compelling nature to voluntarily terminate his employment.



       2
         This Court’s standard of review is limited to determining whether constitutional rights
were violated, whether an error of law was committed, or whether necessary findings of fact are
supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S.
§ 704.

                                               4
              Section 402(b) of the Law, pertaining to voluntary termination without
cause of a necessitous and compelling nature, provides in part that an employee 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.”
Where a claimant voluntarily terminates employment, the claimant bears the burden
of proving that the basis of the decision to terminate employment was a necessitous
and compelling one. Pa. Gaming Control Bd. v. Unemployment Comp. Bd. of
Review, 47 A.3d 1262, 1265 (Pa. Cmwlth.), appeal denied sub nom. Wyatte v.
Unemployment Comp. Bd. of Review, 62 A.3d 381 (Pa. 2012). This burden may be
met by showing that the circumstances at the time of the decision produced both a
real and substantial pressure to leave the employment and that a reasonable person
would have been similarly compelled under the same circumstances.3 Taylor v.
Unemployment Comp. Bd. of Review, 378 A.2d 829, 833 (Pa. 1977); Beachem v.
Unemployment Comp. Bd. of Review, 760 A.2d 68, 71 (Pa. Cmwlth. 2000). The
“follow-the-spouse” doctrine, which is applied when a claimant leaves employment
in order to relocate to be with his or her spouse, satisfies this inquiry. Glen Mills
Schs. v. Unemployment Comp. Bd. of Review, 665 A.2d 561, 564 (Pa.
Cmwlth. 1995).
              Under the follow-the-spouse doctrine, a claimant’s burden is two-fold.
Wheeler v. Unemployment Comp. Bd. of Review, 450 A.2d 775, 778 (Pa.
Cmwlth. 1982).       First, the claimant must establish that the move created
insurmountable commuting problems or that maintaining two residences would
result in economic hardship. Glen Mills Schs., 665 A.2d at 564. Under the second

       3
         Whether a claimant has a cause of a necessitous and compelling nature to voluntarily
leave employment is a question of law subject to this Court’s review. Pa. Gaming Control
Bd., 47 A.3d at 1265.

                                             5
inquiry, the claimant must also demonstrate that circumstances beyond the control
of the claimant’s spouse caused the necessity to relocate, that the decision was
reasonable and made in good faith, and that the relocation was not a result of the
spouse’s personal preferences. Pa. Gaming Control Bd., 47 A.3d at 1267; Glen Mills
Schs., 665 A.2d at 564. Relocation due to a spouse’s inability to find a job locally
in the spouse’s field due to the spouse’s unique occupation and highly specialized
skills has been found to meet the second part of the test.4 Glen Mills Schs.,
665 A.2d at 564. Unemployment compensation benefits, however, are not meant to
“finance a voluntary change of career.” Rodriguez v. Unemployment Comp. Bd. of
Review, 174 A.3d 1158, 1165 (Pa. Cmwlth. 2017). Rather, “the objective of the
Law[5] . . . is to ensure that employees who become unemployed involuntarily are
provided with some semblance of economic security.”                    Hamot Med. Ctr. v.
Unemployment Comp. Bd. of Review, 645 A.2d 466, 469 (Pa. Cmwlth. 1994).
              Here, Claimant appears to argue that he is entitled to benefits under the
follow-the-spouse doctrine because his spouse’s relocation was necessary due to an
inability to find specialized employment as an art teacher locally. Claimant testified

       4
          In Glen Mills Schools, we held that where a claimant’s spouse is trained in a highly
specialized area, inability to find employment in that field may constitute circumstances outside
of the claimant’s spouse’s control. In Glen Mills Schools, the claimant and her spouse resided in
Chester County where they were both employed. The claimant’s spouse was employed as a
physicist and had a Ph.D. in the discipline, but he lost his job. The claimant’s spouse sought
employment locally for a period of more than four months to no avail, after which he received and
accepted an offer of employment in Maryland. The claimant’s spouse initially commuted
two-and-a-half hours each weekend, but the commute became burdensome and the couple was not
able to maintain two separate residences, so the claimant voluntarily left her job and moved to
Maryland. This Court found that the claimant’s spouse’s decision to accept the job in Maryland
was not motivated by personal preference but by circumstances beyond his control in the form of
his “unique occupation and highly specialized skills.” Glen Mills Schs., 665 A.2d at 564.
       5
        Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§§ 751-918.10.

                                               6
that his spouse needed to relocate in order to accept full-time employment “in her
chosen field, which is very specific.” (C.R., Item No. 10 at 3.) Claimant further
explained that “there are no such positions up in Pennsylvania” and that “it’s very
difficult to obtain . . . that type of position.” (Id.) As to the financial aspect of the
relocation, Claimant testified that, prior to the decision to relocate, his spouse was
employed for between two to six hours each week and that the position was not
economically viable. (Id.)
               The Board counters that Claimant’s spouse’s decision to relocate to
accept full-time employment when she already had part-time employment is more
comparable to a change of job based on personal preferences rather than necessity.
The Board compares the situation to that presented in Kochel v. Unemployment
Compensation Board of Review (Pa. Cmwlth., No. 284 C.D. 2012, filed
November 7, 2012).6 In Kochel, the claimant testified that her husband changed his
job because “it would allow him to better utilize his education, [it] had better hours,
and better pay.” Kochel, slip op. at 2. This Court, therefore, held that these reasons
were related to personal preference rather than circumstances outside the spouse’s
control, and we affirmed the denial of benefits. Id. While this holding is not binding,
we based our decision in Kochel on our holding in Gaunt v. Unemployment
Compensation Board of Review, 510 A.2d 895 (Pa. Cmwlth. 1986), wherein this
Court found that the claimant’s husband’s decision to accept new employment
because it was a better position was not a circumstance beyond his control. Gaunt,
510 A.2d at 896. We note, however, that neither of those cases involved a claimant’s



       6
          Pursuant to Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code
§ 69.414(a), an unreported panel decision issued by this Court after January 15, 2008, may be cited
“for its persuasive value, but not as binding precedent.”

                                                7
spouse being employed part-time and relocating as a result of an inability to find
full-time employment in the career of her choice.
             Moreover, the Board acknowledges that there may be instances where
a couple’s financial situation may be so dire that the circumstances surrounding the
claimant’s spouse’s decision to relocate and accept better employment may be
outside of the claimant’s spouse’s control. See Mathis v. Unemployment Comp. Bd.
of Review (Pa. Cmwlth., No. 1809 C.D. 2009, filed June 10, 2010.) In Mathis, the
claimant was facing termination of her employment in Pittsburgh, which prompted
her spouse to accept a better position in Erie instead of keeping his job in Pittsburgh.
Mathis, slip op. at 1. The claimant also testified that other factors such as foreclosure
on their home, their two young children, daycare expenses, and a two-hour total
commute contributed to the couple’s decision to relocate. Id. This Court found that
the claimant’s spouse’s decision to relocate was not based on personal preference
even though the accepted job would pay more. Id. at 3. The decision to relocate
was characterized as “strictly for survival purposes,” because the couple was about
to lose their home in foreclosure proceedings, the cost of daycare for two children
was high, and relocation to Erie would result in a more reasonable cost of living with
the added benefit of family nearby that could provide daycare at no cost. Id. The
circumstances surrounding the couple’s relocation were, therefore, out of the
claimant’s spouse’s control and not based on personal preference.
             Here, we agree that Claimant’s spouse’s decision to relocate was
motivated by a desire to accept a full-time job that would allow her to better utilize
her training and obtain better pay. Thus, her decision to relocate to accept a better
job for which she was trained was motivated largely by personal preference. Her
situation is different than that in Glen Mills Schools, because her relocating to accept


                                           8
a specialized job did not occur as a result of her losing a specialized job. As to
Claimant’s spouse’s prior part-time employment, it appears that Claimant may be
suggesting that his spouse’s part-time employment was so insubstantial as to render
the relocation necessary. Claimant, however, did not present evidence or develop
an argument that the couple’s financial situation was so dire that it necessitated
relocation, as in Mathis.       The mere mention that her employment was not
economically viable does not show the state of the couple’s finances or provide
evidence of any impending economic crises. Based on these factors, Claimant has
not proven that the decision to relocate was motivated by circumstances outside of
Claimant’s spouse’s control.
            For these reasons, Claimant failed to prove that his decision to
voluntarily terminate his employment was based on necessitous and compelling
reasons. Accordingly, we affirm the order of the Board.




                                         P. KEVIN BROBSON, Judge


Senior Judge Colins dissents.




                                         9
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Daniel J. Leason,                    :
                      Petitioner     :
                                     :
            v.                       :   No. 223 C.D. 2018
                                     :
Unemployment Compensation            :
Board of Review,                     :
                    Respondent       :




                                   ORDER


            AND NOW, this 21st day of November, 2018, the order of the
Unemployment Compensation Board of Review is hereby AFFIRMED.




                                     P. KEVIN BROBSON, Judge
