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GEORGE W. DOMINICK v. COMMONWEALTH PENNSYLVANIA (05/01/79)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: May 1, 1979.

GEORGE W. DOMINICK, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT

Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of George Dominick, No. B-144148.

COUNSEL

Louis M. Shucker, with him Ellen L. Hyman, and Barbara J. Hart, for petitioner.

Elsa D. Newman, Assistant Attorney General, with her Gerald Gornish, Acting Attorney General, for respondent.

Judges Rogers, DiSalle and Craig, sitting as a panel of three. Opinion by Judge DiSalle.

Author: Disalle

[ 42 Pa. Commw. Page 349]

We have before us a petition for review filed by George W. Dominick (Petitioner) from the decision of the Unemployment Compensation Board of Review (Board) dated April 21, 1977, denying benefits pursuant to Section 402(b)(1) of the Unemployment Compensation Law, Act of December 5, 1936, P.L. (1937) 2897, as amended, 43 P.S. ยง 802(b)(1). We reverse.

Petitioner was employed by the Hotel Easton (Hotel) as a general worker for a period of eight years. During that entire time, he would commence his duties in April and terminate them in October. Over the winter months it was Petitioner's habit to seek similar work in Florida. Each year, however, he was required to submit a formal application to his employer; consequently, he was never assured of an opening at the Hotel for the next tourist season. Focusing on his tenure of employment in 1976, it appears that Petitioner was hired in April of that year, with the understanding that his position would end in October. Consistent with past practices, Petitioner's last day at the Hotel was November 7, 1976.

[ 42 Pa. Commw. Page 350]

Since Petitioner testified that he felt work was available for him in Florida during the winter months of 1976-77, when in fact there was none, the Board concluded that he quit his position at the Hotel for an indefinite prospect of future employment. The Board accordingly found Petitioner to be ineligible for compensation. See Unemployment Compensation Board of Review v. Pennsylvania Power & Light Co., 23 Pa. Commonwealth Ct. 220, 351 A.2d 698 (1976); Eckenrod v. Unemployment Compensation Board of Review, 15 Pa. Commonwealth Ct. 166, 325 A.2d 320 (1974).

The narrow issue we are faced with is whether Petitioner voluntarily left his employment. This, of course, is a question of law. Haseleu v. Unemployment Compensation Board of Review, 12 Pa. Commonwealth Ct. 96, 316 A.2d 159 (1974). Petitioner asserts that there was an oral agreement between him and his employer that his job would terminate at the end of the summer tourist season in Easton. While no verbal or written agreement delineating the specific terms of his tenure exists, it is quite evident that there was an understanding between Petitioner and his employer during the time of his employment. The "terms" of this implied agreement can be gleaned from the past practices of these parties. Most significant is the fact that, toward the end of October, 1976, the employer approached Petitioner and informed him that his room had been rented out to a paying guest. In our view, the obvious import of this was that Petitioner's position was terminated by his employer.

We note parenthetically that it is of no consequence what Petitioner chose to do in the intervening months. Rather than being industrious and seeking further employment in the hotel business in Florida, he could have chosen to remain and attempt to find work in Pennsylvania, failing which, he would probably have

[ 42 Pa. Commw. Page 351]

    been eligible for benefits. It follows, therefore, that to deny Petitioner benefits by characterizing his behavior as a voluntary quit for the indefinite prospect of future employment was clearly in error.*fn1 In arriving at this decision, not only did the Board misconstrue the

[ 42 Pa. Commw. Page 352]

    evidence but the result penalizes Petitioner for returning to a locale where he had good cause to believe continuing employment would be available to him.

Order

And Now, this 1st day of May, 1979, the order of the Unemployment Compensation Board of Review, dated April 21, 1977, denying benefits to George W. Dominick, is hereby reversed and the case is remanded for computation of benefits.

Disposition

Reversed and remanded.


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