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Dehn v. Unemployment Compensation Board of Review

Commonwealth Court of Pennsylvania

April 2, 2018

Gero von Dehn, Petitioner
v.
Unemployment Compensation Board of Review, Respondent

          Submitted: February 16, 2018

          BEFORE: HONORABLE ROBERT SIMPSON, Judge, HONORABLE CHRISTINE FIZZANO CANNON, Judge, HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

          OPINION

          ROBERT SIMPSON, Judge

         Gero von Dehn (Claimant), representing himself, petitions for review from an order of the Unemployment Compensation Board of Review (Board), affirming a referee's decision finding him ineligible for unemployment compensation (UC) benefits under the Unemployment Compensation Law[1] (UC Law). The Board found Claimant ineligible under Section 402(b) of the UC Law, 43 P.S. §802(b), based on his voluntary resignation without a necessitous and compelling reason. Upon review, we reverse.

         I. Background

         The facts of this case, while straightforward in themselves, reflect confusion on the part of the parties, the Department of Labor and Industry (Department), the referee, and the Board. This confusion apparently arose from Claimant's concurrent employment by both a full-time and an intermittent part-time employer. After a layoff from his full-time job, Claimant applied for UC benefits. However, between the date of the layoff and the date he applied for UC benefits, Claimant worked a single shift for his intermittent part-time employer. This circumstance apparently led to a mistaken designation of the intermittent part-time employer, rather than the full-time employer, as the separating employer for UC purposes.

         Claimant's intermittent part-time employer, Camp Bow Wow, is a commercial daycare facility for dogs. From 2013 through 2016, Claimant worked sporadically for Camp Bow Wow on a part-time basis. Claimant also worked a number of other jobs, including summer jobs outside Pennsylvania. He was also self-employed at times. The parties' practice was that Camp Bow Wow would notify Claimant when it had shifts available for him, and Claimant would accept shifts when he was available to work them. However, Camp Bow Wow set its schedule several weeks in advance and did not allow any changes or cancellations once a schedule was set.

         Upon returning from an out-of-state summer job in September 2016, Claimant succeeded in obtaining membership in the International Association of Theatrical Stage Engineers (Union). For the next three months, Claimant worked full-time, plus overtime, on a Union job constructing sets for a television series produced by Entertainment Partners Enterprise (Full-Time Employer).

         In December 2016, Claimant was laid off from the Union job for FullTime Employer. He subsequently worked one four-hour shift for Camp Bow Wow in December 2016. This was the only day Claimant worked for Camp Bow Wow from April to December 2016.

         Claimant initially expected to be recalled to work for Full-Time Employer, through the Union, in January 2017. He was required to be on call and to return to work immediately if the Union called him. This circumstance was incompatible with Camp Bow Wow's advance scheduling and refusal to allow cancellations. Based on the gross disparity in earnings between full-time plus overtime pay in the Union job and sporadic part-time work with Camp Bow Wow, Claimant chose not to risk his Union job. He therefore told Camp Bow Wow not to schedule him for future shifts. However, delays occurred in production of the television series, and the Union did not call Claimant back to work for Full-Time Employer in January as anticipated.

         Claimant applied for UC benefits in January 2017 because of his loss of wages resulting from his layoff and the delay in resumption of work for Full-Time Employer. However, having worked one day for Camp Bow Wow after the layoff by Full-Time Employer in December 2016, he listed Camp Bow Wow as his "last" employer on his UC benefit application. See Certified Record (C.R.), Item #3. In his employment separation questionnaire, Claimant explained his unemployment as follows:

I took a summer job in Alaska. When I returned I was hired by [Union]. That work is full-time when we're on. I've been expecting a call back to the [U]nion work since December. Expected call back keeps getting delayed.
Camp Bow Wow schedules 3 weeks in advance. When you can't make it, it's a huge problem. I have explained to them that I could get called back to the [U]nion any day and would have to go. That is ...

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