No. 81-3-389, Appeal from the Order of the Commonwealth Court in No. 1696 C.D. 1979, dated October 29, 1980, affirming the Order of the Unemployment Compensation Board of Review dated July 13, 1979
Peter B. Macky, Sunbury, Susquehanna Legal Serv., for appellant.
Charles Hasson, Asst. Atty. Gen., for appellee.
Jerome H. Gerber, Elliot A. Strokoff, Harrisburg, for amicus AFL-CIO.
O'Brien, C.j., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ. Flaherty, J., files a concurring opinion in which Nix, McDermott and Hutchinson, JJ., join.
Appellant Greg Treon applied for unemployment compensation on October 15, 1978. The Bureau of Employment Security found that appellant had left his employment voluntarily without cause of a necessitous and compelling nature and denied benefits in accordance with § 402(b)(1) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b)(1) (Supp. Pamphlet). Thereafter, a hearing was held before a referee and the denial of benefits was upheld by both the referee and the Unemployment Compensation Board of Review. On appeal, the Commonwealth Court affirmed. Treon v. Commonwealth, Unemployment Compensation Board of Review, 54 Pa. Commw. 412, 421 A.2d 525(1980). We granted allocatur and we now reverse.
Appellant first contends that the Commonwealth Court erred in affirming the Board's findings of fact. We agree.
In this case, the hearing was conducted by the referee and appellant was the only witness. Appellant had no counsel, and no representative of Engineered Masonry was present. At the hearing, appellant testified that he was single and that he lived in Sunbury; that he had worked for Engineered Masonry as a bricklayer in Shamokin at the rate of $10.70 per hour from May, 1978 until he was laid off on October 10, 1978; that on October 10, 1978, Engineered Masonry offered appellant other work in Darby, south of Philadelphia; that appellant did not accept this offer because it would involve 336 miles -- about seven to eight hours -- of travel each day, at a cost of $105.00 to $125.00 per week, because the company did not offer to help with transportation, and because there was no guarantee of continued
work or good weather,*fn1 that he had not worked since October 10, 1978 but that he remained available for work; that the farthest he had ever commuted to work was 55 miles each way; that the first time he worked for Engineered Masonry was on the construction job in Shamokin; that he did not know when he began working for Engineered Masonry that he might have to move when the construction in Shamokin was completed; that when he was offered the job in Darby, he told the foreman that he would have to think it over; that he did not know what happened to the other bricklayers who had been working with him in Shamokin; and that he never contacted Engineered Masonry after his last day of work on October 10, 1978.
Based upon appellant's testimony, the referee found the following facts:
1. The claimant was last employed by Engineered Masonry as a bricklayer, at a salary of $10.70 per hour and was employed by this company for a period of approximately six months.
2. His last day of work was 10-10-78, when his job was completed and he was offered similar work in the Philadelphia area at the same rate of pay.
3. Claimant informed his employer he would think about it, and never contacted his employer ...