IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Elise Rodriguez, :
Petitioner :

:

v. : No. 903 C.D. 2016

: Argued: June 5, 2017
Unemployment Compensation : Board of Review, : Respondent :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE JOSEPH M. COSGROVE, Judge

OPINION BY JUDGE BROBSON FILED: September 7, 2017

Petitioner Elise Rodriguez (Claimant) petitions for review of an order

of the Unemployment Compensation Board of Review (Board) . The Board

affirmed the Referee’s decision and order denying Claimant Unemployment

Compensation benefits pursuant to Section 402(b) of the Unemployment

Compensation Law (Law) , relating to voluntarily leaving work without cause of a

necessitous and compel ling nature

. 1 For the reasons set forth below, we now

affirm the Board’s order.

Claimant worked for Quakertown Pain and Rehab (Employer) as a

full

- time Office Manager. (Certified Record (C.R.), Item No. 8 at 2.) Claimant

voluntarily separated from Empl oyer on December 24, 2015, in order to relocate to

1 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended , 43 P.S.

§ 802(b). Section 402(b) of the Law provides, in pertinent part, that an employee shall be

ineligible for compensation for any week “in which his unemployment is du e to voluntarily

leaving work without cause of a ne cessitous and compelling nature. ”2

Florida with her spouse, who had accepted a full tuition scholarship to attend a

school in Florida. Claimant subsequently filed for unemployment compensation

benefits on January 13, 2016. (C.R., I tem No. 3.) The Altoona Unemployment

Compensation Service Center (Service Center) issued a determination, finding

Claimant ineligible for benefits for failing to show a necessitous and compelling

reason for terminating her employment. (C.R., Item No. 4.) Claim ant appealed the

Service Center’s determination, and a Referee conducted an evidentiary hearing.

(C.R., Item No. 5.)

At the hearing before the Referee, Employer elected not to appear.

Claimant, however, appeared without counsel and testified that she vo luntarily

terminated her employment in order to relocate to Florida with her spouse.

( Id. at 2.) Prior to making that decision, Claimant testified that her spouse had

been unsuccessful at obtaining local employment due to his criminal background.

( Id. at 3.) In light of those circumstances, Claimant stated that the couple’s church

presented her spouse with a scholarship to attend a theological school in Tampa,

Florida. ( Id. ) Given the distance between Florida and Pennsylvania, Claimant

testified tha t she considered staying in Pennsylvania with their children while her

spouse commuted to Florida, but that was not feasible. ( Id. ) According to

Claimant, that type of arran ge ment was against the school’s religious principles, as

it did not believe in se parating families. ( Id. ) As a result, Claimant stated that the

entire family had to relocate to Florida so that her spouse could accept the

scholarship. ( Id. )

Following the hearing, the Referee issued a decision, affirming the

Service Center’s determination, thereby finding Claimant ineligible for

unemployment compensation benefits pursuant to Section 402(b) of the Law.3

(C.R., Item No. 9.) The Referee determin ed that Claimant and her family made a

personal choice to accept the church’s scholarship and prospective employment

offer, 2 which did not constitute a necessitous and compelling reason under the

Law. 3 ( Id. )

Claimant appealed to the Board, which, in turn , remanded the matter

to the Referee. (C.R., Item No s . 10, 13.) On remand, the Board instructed the

Referee to conduct a hearing for the purpose of gathering additional information

regarding the merits of the case. (C.R., Item No. 12.) Specifically, th e Board

solicited the following information:

1. How long was the claimant’s husband unemployed
before accepting the offer of employment in Florida?

2. After losing his job, what efforts did the claimant’s
husband make to obtain employment locally in order to
remain in Pennsylvania?

3. What is the claimant’s salary or hourly wages at
his new job in Florida?

4. If hourly, how many hours per week is the claimant’s husband working?

5. What were the claimant’s husband’s wages at his
prior job?

( Id .) At the remand hearing, Claimant appeared before the Referee along with

counsel and her husband. Claimant’s husband, Miguel Caballero, testified that he

worked as a certified forklift operator and also had a Class A driver’s license.

2 The Board, thereafter, did not make any finding that Mr. Caballero had a prospective

offer of employment. (C.R., Item No. 17.)

3 Act of December 5, 1936, Second Ex. S ess., P.L. (1937) 2897, as amended

, 43 P.S.

§§ 751

- 918.10.4

(C.R., Item No. 16 at 4.) Much of his employment, he testified, was irregular, as

there were times in which he was unemployed up to a year. ( Id. ) Moreover,

Mr. Caballero stated that he was unable to obtain permanent employment with any

of his temporary jobs because he could not pass bac kground checks. ( Id. at 4

- 5.)

He attributed these unsuccessful efforts to his criminal history. ( Id .) Nonetheless,

Mr. Caballero testified that he persisted by contacting his temporary staffing

agency, as well as other temporary staffing agencies, on a weekly basis seeking

employment opportunities. ( Id. at 4.) According to Mr. Caballero, employers

continually rejected his solicitations, which prompted him to start his own

business. ( Id. at 4

- 5.) That venture ultimately failed. ( Id. at 4.)

Mr. C aballero testified that his church presented him with an

opportunity to attend a theological school on a full tuition scholarship. ( Id. at 6

- 7.)

Although the school was located in Tampa, Florida, Mr. Caballero stated that he

accepted the opportunity

. ( I d. at 6.) The school, however, would only allow him

to attend on the condition that he move to Florida with his entire family, as it did

not believe in separating families. ( Id. ) Furthermore, according to Mr. Caballero,

there was a good prospect of full

- time employment as a minister following the

completion of the ministerial program. ( Id. at 7.) He explained that he would

receive his bachelor’s degree when he finished. ( Id. ) Finally, Mr. Caballero

testified that

, while in Florida, he found part

- time work that paired well with his

full

- time course load, and Claimant briefly testified that she had sought suitable

work in Florida but had been unable to obtain such employment. ( Id. at 6, 10.)

Following the remand hearing, the Board found as follows :

1. Quakertown Pain and Rehab, P.C. employed the

claimant from May 8, 2013, through December 24, 2015, as an office manager earning $30,000 annually.5 2. The claimant’s husband is a certified forklift

operator; he also has a Class A driver’s license.

3. During 2015, the claimant’s husband worked for a

temporary staffing agency as a truck driver for various

clients.

4. The claimant’s husband attempted to obtain

permanent employment as a truck driver, but due to his
criminal record, he was unable to pass employers’

background checks.

5. In late 2015, the claimant’s husband received a

scholarship to a college in Florida. [ 4 ]

6. The claimant’s husband accepted the scholarship

and moved to Florida.

7. After moving to Florida, the claimant’s husband

began working for a temporar y staffing agency as a truck

driver; he also attended school full

- time.

8. On December 24, 2015, the claimant voluntarily

quit her employment to relocate to Florida with her

husband.

(C.R., Item No. 17.) Based on these facts, the Board affirmed the Referee ’s

determination, holding that Claimant was ineligible for unemployment

compensation benefits under Section 402(b) of the Law. ( Id. ) The Board reasoned

that Claimant’s husband made a personal choice to attend school in Florida,

evidenced by Claimant’s fa ilure to demonstrate that circumstances beyond her

4 The Referee finds that Claimant’s husband accepted a scholarship to a “college” in

Florida, but there is nothing in the record identifying the college or confirming that the school i s

a “college.”6

husband’s control caused her relocation. ( Id. ) Specifically, the Board found that

Claimant failed to present evidence that her husband’s inability to obtain

employment within his field was the cause of h er relocation or that her spouse

relocated to accept an offer of permanent employment. ( Id. ) Claimant now

petitions this Court for review.

On appeal, 5 Claimant presents two arguments. Claimant first argues

that substantial evidence of record does not support the Board’s determination.

Claimant then argues that the Board’s determination was based on an error of law

or abuse of discretion inconsistent w ith the “follow

- the

- spouse” doctrine.

Substantial evidence is defined as relevant evidence upon which a

reasonable mind could base a conclusion. Johnson v. Unemployment Comp. Bd. of

Review , 502 A.2d 738, 740 (Pa. Cmwlth. 1986). In determining whether th ere is

substantial evidence to support the Board’s findings, this Court must examine the

testimony in the light most favorable to the prevailing party, giving that party the

benefit of any inferences that can logically and reasonably be drawn from the

evid ence. Id

. A determination as to whether substantial evidence exists to support

a finding of fact can only be made upon examination of the record as a whole.

Taylor v. Unemployment Comp. Bd. of Review , 378 A.2d 829, 831 (Pa. 1977). The

Board’s findings of fact are conclusive on appeal only so long as the record, taken

as a whole, contains substantial evidence to support them. Penflex, Inc. v. Bryson

,

485 A.2d 359, 365 (Pa. 1984). “The fact that [a party] may have produced

5 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.

§ 704.7

witnesses who gave a different version of the events, or that [the party] might view

the testimony differently than the Board is not grounds for reversal if substantial

evidence supports the Board’s findings.” Tapco Inc. v. Unemployment Comp. Bd.

of Review , 650 A.2d 1106, 1108

- 09 (Pa. Cmwlth. 1994). Similarly, even if

evidence exists in the record that could support a contrary conclusion, it does not

follow that the findings of fact are not supported by substantial evidence. Johnson

v. Unemployment Comp. Bd. of Review , 504 A.2d 989, 990 (Pa. Cmwlth. 1986).

Claimant asserts that substantial evidence does not support the

Board’s determination. In doing so, Claimant at no point addresses any finding of

fact to which she takes exception or explains how the evidence of record fails to

su pport such finding. Instead, Claimant merely provides a narration of the facts in

the instant matter in support of her position. Because Claimant failed to challenge

any finding of fact in her brief, the Board’s findings are binding on appeal. Munski

v

. Unemployment Comp. Bd. of Review , 29 A.3d 133, 136 (Pa. Cmwlth. 2011).

We next address Claimant’s argument that the Board committed an

error of law or abuse of discretion because its determination was inconsistent with

the “follow

- the

- spouse” doctrine. Claimant contends that under the

“follow

- the

- spouse” doctrine, she had a necessitous and compelling reason to

voluntarily quit her employment when she relocated with her spouse to Florida.

Where the terminati on of employment is voluntary, the claimant b ears

the burden of demonstrating that it was for a necessitous and compelling reason.

Pennsylvania Gaming Control B d

. v . Unemployment Comp. B d

. of Review

,

47 A .3d 1262, 1265 (Pa. Cmwlth. )

, appeal denied sub nom. Wyatt v.

Unemployment Comp. Bd. of Review , 62 A.3d 381 (Pa. 2012)

. A claimant may

meet this burde n by showing that circumstances produced both a real and8

substantial pressure to leave her employment and that a reasonable person would

have been compelled to act in the same manner under the same circumstances. 6

Taylor v . Unemployment Comp. B d

. of Review

, 378 A.2d 829, 833 (Pa. 1977) ;

Beachem v . Unemployment Comp. B d

. of Review , 760 A.2d 68 , 71 (Pa.

Cmwlth. 2000) . Our court has hel d that the “follow

- the

- spouse” doctrine satisfies

this inquiry. Glen Mills Sch s

. v . Unemployment Comp. B d

. of Review , 66 5 A.2d

561, 564 (Pa. Cmwlth. 1995)

.

Under the “follow

- the

- spouse” doctrine, a claimant’s burden is

two

- fold. Whee ler v. Unemployment Comp. B d

. of Review

, 450 A.2d 775, 778 (Pa.

Cmwlth. 1982)

. First, the claimant must establish that the move created

insurmountable co mmuting problems or that maintaining two residences would

result in economic hardship. Glen Mills , 665 A.2d at 564. Under the second

inquiry , the claimant must also demonstrate that circumstances beyond the control

of the claimant’s s pouse caused the necessity to relocate, the decision was

reasonable and made in good faith, and that the relocation was not a result of the

spouse’ s personal preferences. Pennsylvania Gaming Control B d

. , 47 A.3d

at 1267 ; Id.

Turning to the f irst prong of the “follow

- the

- spouse” doctrine,

Claimant testifie d before the Referee, in the initial hearing, that her spouse

accepted a scholarship to attend a school located in Tampa, Florida. Claimant also

testified that she resided in Pennsylvania at the time she terminated her

employment to join her husband in Fl orida . As a result, the move to Florida

6 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. Pennsylvania Gaming

Control Bd. , 47 A.3d at 1265

.9

created an insurmountable commuting problem for Claimant with regard to her

Pennsylvania job. See Glen Mills , 665 A.2d at 564 (holding that it is obviously

unreasonable to commute five hours round trip each day)

. Accordingly, Claimant

sustained her burden of demonstrating an insurmountable commuting problem and

,

therefore

, satisfied the first prong of the “follow

- the

- spouse ” doctrine.

I n order to satisfy the second prong of the analysis, a c laimant must

demonstrat e that circumstances beyond her spouse’s control 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. W e note that the

desire to maintain the family unit, alone, is insufficient to establish a necessary and

compelling reason to leave employment. Schecter v . Unemployment Comp. B d

. of

Review

, 491 A.2d 938, 941 (Pa. Cmwlth. 1985)

. On the other hand

, a claimant

may meet her burden by demonstrating that the relocating spouse’s position has

been el iminated. Other examples of evidence offered to meet this burden have

included a limited job market due to the highly specialized nature of a spouse’s

occupation

, 7 a spouse’s military orders, 8 a spouse’s medical needs

, 9 or evidence

that a spouse’s job will be eliminated. 10

7 Glen Mills , 665 A.2 d at 564

.

8 Pennsylvania Gamin g Control Bd.

, 47 A.3d at 1270

- 71

.

9 St eck v. Unemployment Comp. B d

. of Review

, 467 A.2d 1378, 1380 (Pa. Cmwlth. 1983)

.

10 S ee Me chanicsburg Area Sch. Dist. v . Unemployment Comp. Bd. of Review

, 551 A.2d 401

, 402

- 03 (Pa. Cmwlth. 1988) ( holding that spouse’s employer informing spouse

that it would be going out of business on specific date satisfied burden under

“follow

- the

- spouse” doctrine )

.10 Here, t he Board determin ed that Claimant failed to establish that her

spouse’s inability to find employment was due to circumstances beyond his

control. With regard to Mr. Caballero’s employment , the Board found that

“[d]uring 2015 , the claimant’s husband worked for a temporary staffing agency as

a truck driver for various clients,” and he “attempted to obtain permanent

employment as a truck driver, but due to his criminal record, he was unable to pass

employers’ background checks.” (C.R., Item No. 17, Finding of Fact (F.F.)

Nos. 3, 4.) Thus, prior to his relocation to Florida for purposes of schooling, Mr.

Caballero was able to maintain some level of employment as a truck driver

— he

just was unable to obtain a permanent position

. His relocation to Florida was not

done in order to accept an offer of employment in a highly

- specialized field with a

limited job market or because his job was going to be eliminated. Moreover, Mr.

Cabellero did not testify that he was unable to find othe r types of employment

locally or that he even tried to do so. He also did not testify to exploring any

possible schooling opportunities that may have been available to him locally. He

only testified that there was no scholarship program like this in Alle ntown. (C.R.,

Item No. 16 at 6.) Even more importantly, the Board did not find that Mr.

Caba llero had any offer of employment whatsoever that was contingent upon his

completing the schooling in Florida. To be clear, Mr. Caba llero did not testify

that h e would have a job following the completion of his schooling. Instead, when

asked whether a new opportunity for employm ent arose in July 2015, Mr.

Caba llero responded: “No. What came up at that time was a scholarship for

school.” (C.R., Item No. 16 at 6.) When asked if there is a “good prospect for11

long

- term future employment as a minister,” he replied “Yeah. I’m going to

receive my bachelor’s degree when I’m finished.” 11 ( Id. at 7.) Under these

circumstances, we must conclude that the Board did not err in determining that his

relocation was the result of personal preference, not necessity. 12

Furthermore, we observe that “ t he objective of the Law

. . . is to

ensure that employees who become unemployed involuntarily are provided with

some semblance o f economic security. ” Hamot Medical Center v. Unemployment

Comp. Bd. of Review , 645 A.2d 466, 469 (Pa. Cmwlth. 1994). Thus, it is not the

purpose of unemployment compensation to be a vehicle through which a family

may finance a voluntary change of career or a desire for a spouse to obtain

additional education. If Mr. Caballero had a firm offer of employment for when he

completed the schooling, our decision may have been different. 13

11 Claimant testified that her “husband decided to go into ministry with [their] church,”

and “they offered him a scholarship for school in Tampa, to pursue his career in ministry.”

(C.R., Item No. 8 at 3.) She then testified that “he’s actually working for the church,” but then

seemed to contradict that testimony when she testified that “he’s doing ministry work for the

school itself.” ( Id. )

12 In addition, while not addressed by the Referee or Bo ard, it is not clear to the Court

that Claimant’s decision to relocate was reasonable under the circumstances. Here, Claimant

was the only spouse with permanent employment, which she gave up so that her husband could

pursue an educational opportunity with no guaranteed job

— only a potential for a job. The

educational opportunity, although it involved a scholarship, was not actually “free” for the

family, because it came at a cost of the loss of Claimant’s $30,000 annual income.

13 We note that i n consid ering whether a claimant established cause of a necessitous and

compelling nature to voluntarily terminate employment due to another employment opportunity

which ultimately does not come to fruition, this Court has held that “[t]he receipt and acceptance

o f a firm offer of employment . . . constitute[s] compelling cause for termination of

employment.” Top Oil Co. v. Unemployment Comp. Bd. of Review , 488 A.2d 1209, 1211 (Pa.

Cmwlth. 1985). “The offer of employment, however, must be definite.” Solar Innov ations, Inc.

v. Unemployment Comp. Bd. of Review , 38 A.3d 1051, 1056 (Pa. Cmwlth. 2012). Here, (Footnote continued on next page...)12 For these reasons, Claimant failed to satisfy the second prong of

Whee ler

— that circumstances beyond the control of the claimant’s spouse caused

the necessity to relocate, the decision was reasonable and made in good faith, and

that the relocation was not a result of the spouse’s personal preferences.

Accordingly, we affir m the order of the Board.

P. KEVIN BROBSON, Judge

(continued...)

Claimant quit her job despite the fact that her husband did not have a firm and definite offer of

employment following the completion of his schooling.IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Elise Rodriguez, :
Petitioner :

:

v. : No. 903 C.D. 2016

: Unemployment Compensation : Board of Review, : Respondent :

O R D E R

AND NOW, this 7 th day of September , 201 7

, the order of the

Unemployment Compensation Board of Review is AFFIRMED.

P. KEVIN BROBSON, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Elise Rodriguez

, :

Petitioner :

:

v. :

: Unemployment Compensation :
Board of Review, : No. 903 C.D. 201 6

Respondent : Argu ed: June 5

, 2017

BEFORE: HONORABLE P. KEVIN BROBSON

, Judge

HONORABLE MICHAEL H. WOJCIK

, Judge

HONORABLE JOSEPH M. COSGROVE, Judge

DISSENTING OPINION

BY JUDGE COSGROVE FILED: September 7, 2017

As I believe Elise Rodriguez (Claimant) has met her burden under the

“follow the spouse” doctrine, I must dissent.

We have long held that the Unemployment Compensation Law

(Law) 1 “ was intended to be remedial legislation which is to be liberally and

broadly construed...” Steck v. Unemployment Comp ensation Board of Review

,

467 A.2d 1378, 1380 ( Pa. Cmwlth. 1983) (citing Kleban v. Unemployment

Compensation Board of Review, 459 A.2d 53, 55 ( Pa. Cmwlth. 1983) ). In the

“follow the spouse” context, we have recognized the unique nature of the fami ly

1 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.

§ §751

- 919.10.JMC

- 2

unit in situations where compelling reasons motivated the initial move in the first

place:

While preservation of the family unit does not, in and of

itself, give rise to necessitous and compelling reason

under Section 402(b), [] we are not indifferent to its

social desirability. Moreover, in the absence of statutory language mandating such application, we are disinclined

to interpret the Law in a way which tends to be disruptive

to family unity. In this case, we believe it is sufficient that

the claima nt has demonstrated a good faith desire to keep

her family together, that her interest in preserving the

family unit was irreconcilable with maintenance of her

job due to the distance between her's [sic] and her

husband's places of employment, and that her husband's

decision to relocate was motivated by compelling factors.

Stevens v. Unemployment Comp ensation B oar d of Review

, 473 A.2d 254, 257 ( Pa.

Cmwlth. 1984) (emphasis added).

In the present case, the Majori ty has shown no such “disinclin [ation],”

despite no legislative direction otherwise. Coupled with the “compelling factors”

before us (equally as compelling as those in Stevens ), the Majority’s interpretation

and application of the “follow the spouse” doctrine is erroneous and, for this

family, quite harmful. 2 As there is no indication that this is consistent with

legislative intent, I am compelled to dissent.

2 The Majority stresses Claimant’s husband’s lack of “a firm offer of employment” upon completion of his ministerial training, stating had it been otherwise the Majority’s decision “may

have been different.” ( Majority, slip op. at 11. ) By making this suggestion, the Majority is

adding (wrongly) an additional prong to the follow

- the

- spouse doctrine, something this Court has

never required, from the incarnation o f this doctrine in Wheeler v. Unemployment Compensation

Board of Review

, 450 A.2d 775 (Pa. Cmwlth. 1982) until now. As such, I find the language of

Judge Blatt in her concurring and dissenting opinion in Wheeler to be applicable: “[B]eing

mindful that th e Unemployment Compensation Law was intended to be remedial legislation

which is to be liberally and broadly construed

, and cognizant of these trouble d economicJMC

- 3 ___________________________ JOSEPH M. COSGROVE, Judge

times, I believe that the majority’s rule would promote a result that adversely impacts upon th e preservation of the family unit. It would force families to divide in situations such as the present,

and I cannot believe that the legislature intended such a result. Wheeler

, 450 A.2d at 778

- 779

( Blatt, J., concurring and dissenting)( emphasis added; internal footnote omitted).