93 Pa. Commw. 78 | Pa. Commw. Ct. | 1985
Opinion by
Sandra Flatley (claimant) petitions for review of a decision and order of the Unemployment Compensation Board of Review (Board) affirming a referee’s decision
Claimant initially argues that she met the burden of showing that her- family obligations were necessitous .and compelling reasons for a voluntary quit. Under any test, a voluntary quit claimant bears the burden of proving a cause of necessitous and compelling nature for her action. Bacon v. Unemployment Compensation Board of Review, 89 Pa. Commonwealth Ct. 35, 37, 491 A.2d 944, 945 (1985). Necessitous and compelling circumstances are those which produce pressure to terminate employment which is both real and substantial, and which would compel a reasonable person under the circumstances to act in a like manner. Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 359, 378 A.2d 829, 832-33 (1977).
The law is -set forth in Kleban v. Unemployment Compensation Board of Review, 73 Pa. Commonwealth Ct. 540, 459 A.2d 53 (1983), in which the burden is placed on the claimant to “demonstrate that her resignation from her job was a reasonable and good faith decision,” Id. at 546-48, 459 A.2d at 56-57, and in the lead case of Wheeler v. Unemployment Compensation Board of Review, 69 Pa. Commonwealth Ct. 201, 450 A.2d 775 (1982), which requires the claimant to show that her spouse’s relocation was due to “circumstances beyond the control of the husband [spouse].” Id. at 206, 450 A.2d 778.
The claimant received only seven (7) days notice of the hearing date; the seven (7) days included the intervening Labor Day holiday; she contacted counsel on Thursday, who had but one working day to discover that the husband’s testimony was required, that the husband would be unavailable to testify and to give notice relating to the desired continuance. The claimant and her counsel acted properly given these circumstances.
The Board contends that the referee had sufficient discretion under 34 Pa. Code §101.23 to deny the continuance. We disagree with this argument based on the regulation as written:
(b) Within the discretion of the tribunal, a continuance shall not, however, be granted merely because of the absence of a witness, unless it appears that the testimony and evidence he could give would he competent and relevant to the issues involved and that such information is essential to a proper determination of the case.
34 Pa. Code §101.23, (emphasis added).
For this reason, abuse of discretion in refusing to grant a continuance to hear relevant and essential testimony, the case is remanded for proceedings consistent with this opinion.
Order
And Now, this 19th day of November, 1985, the -order of the Unemployment Compensation Board of Review, No. B-2Q4409, is vacated and the case is remanded to the Board for findings and a decision consistent with the foregoing opinion.
Jurisdiction relinquished.
The Board made no independent findings in the case. The referee’s findings are before the Court.
See Stevens v. Unemployment Compensation Board of Review, 81 Pa. Commonwealth Ct. 239, 473 A.2d 254 (1984) ; Steck v. Unemployment Compensation Board of Review, 78 Pa. Commonwealth Ct. 514, 467 A.2d 1378 (1983) ; Zingler v. Unemployment Compensation Board of Review, 85 Pa. Commonwealth Ct. 313, 481 A.2d 994 (1984).
Where good cause is shown, it is an. abuse of discretion not to grant the continuance. Compare Steadwell v. Unemployment Compensation Board of Review, 76 Pa. Commonwealth Ct. 439, 463 A.2d 1298 (1983) with Conrad v. Unemployment Compensation Board of Review, 84 Pa. Commonwealth Ct. 32, 478 A.2d 930 (1984). What is unfair to claimant is that she attempted to go forward and meet her burden, but was not permitted to by the referee. The referee cannot refuse to hear testimony of a witness and then proceed to make a crucial finding of law characterizing that witness’ actions as “purely personal” without committing an abuse of discretion.