The opinion of the court was delivered by: Mary Hannah Leavitt, Judge
Argued: September 16, 2011
BEFORE: HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judge (P)
James W. Earnest (Claimant) petitions for review of an adjudication of the Unemployment Compensation Board of Review (Board) that found him ineligible for benefits under the Unemployment Compensation Law (Law).*fn1
Claimant worked full-time for two employers and, in quick succession, lost both jobs. The Referee awarded benefits under Section 402(b) of the Law,*fn2 after finding Claimant left his first job for a necessitous and compelling reason. The Board found otherwise. The Board acknowledged that Claimant lost his second job through no fault of his own, but it found him ineligible under Section 401(f) of the Law,*fn3 because not enough time had passed between Claimant's resignation from the first job and his layoff from the second. Concluding that the Board erred in its application of Sections 401(f) and 402(b) of the Law, we reverse and remand.
The facts are not in dispute. Claimant began working full-time as a laborer for Muncy Homes, a modular home manufacturer, in 2002, usually working the first shift from 5:30 a.m. to 2:00 p.m. Layoffs were not uncommon at Muncy when business was slow. In June 2006, Claimant began working a second job in the evenings for Sears Roebuck & Co. doing store security work. By 2008, Claimant was working full-time for both employers.
On January 6, 2010, while working at Muncy, Claimant suffered a work injury to his hand that rendered him unable to do his pre-injury job. However, Claimant continued to work full-time at Sears while collecting workers' compensation disability from Muncy. Also in January, Claimant enrolled in classes at Lycoming College.
Claimant's physician cleared him to work on Monday, February 8, 2010, and Claimant reported for work at Muncy on that day. However, his supervisor informed him that the company was "closed down" that week and that no work was available.*fn4 Reproduced Record at 13a (R.R. ___). Further, his supervisor did not know when Muncy would resume normal operations. In the month of January, Muncy had been open for one three-day work week. Explaining to his supervisor that he was taking classes that were offered only once every few years, Claimant asked that when work became available, he be assigned to work no more than three days a week until the end of the semester. Muncy rejected the proposal.
After this discussion with his supervisor, Claimant quit his job at Muncy on February 9, 2010. Claimant explained in his testimony that he expected to support himself with his full-time job at Sears. However, Sears soon reduced Claimant's hours. Then, in early March, Sears eliminated Claimant's position entirely, effective March 13, 2010. On March 3, 2010, Claimant filed for unemployment as of February 9, 2010, the day after Muncy informed him that it had no available work.
The UC Service Center found that Claimant had voluntarily quit his job with Muncy without cause of a necessitous and compelling nature and was ineligible under Section 402(b) of the Law. Although Claimant's separation from Sears was not voluntary, the UC Service Center found Claimant ineligible by reason of Section 401(f), because he had not earned six times his weekly benefit rate at Sears after leaving Muncy. In the five weeks between leaving Muncy and being dismissed by Sears, Claimant had earned $2,012.50; six times his weekly benefit rate of $425 was $2,550. Claimant appealed.
A hearing was held before a Referee at which only Claimant offered evidence. Muncy did not appear; Sears appeared but did not participate.
Claimant testified that Muncy had been open for production a total of three days in the month of January 2010 and that his supervisor advised him that no work was available when Claimant reported for work on February 8, 2010.
Claimant testified that he informed his supervisor that he could work a three-day week, which was all Muncy had been operating. Claimant stated that the lack of work influenced his decision to quit.
Based upon Claimant's testimony, the Referee found that: (1) Muncy told Claimant that no work was available the week ending February 13, 2010; (2) Muncy had operated only a few days in the previous month; (3) Claimant did not know if, or when, there would be work available in the future; and (4) Claimant quit because work was unavailable. Accordingly, the Referee found that Claimant left Muncy for a necessitous and compelling reason and, thus, was eligible for unemployment compensation as of February 13, 2010. Accordingly, the fact that Claimant did not earn $2,550 at Sears after he left Muncy was irrelevant.
Muncy appealed to the Board. Noting that Claimant requested a schedule concession so he could complete his class, Muncy argued that it needed to maintain a roster of full-time employees who could work "on demand." C.R., Item 11 (Employer's Petition for Appeal from Referee's Decision). Muncy ...