Opinion
Argued May 6, 1976
June 21, 1976.
Unemployment compensation — Domestic responsibilities — Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897 — Working hours — Erroneous advice as to benefits payable.
1. A person whose unemployment is due to leaving work because of domestic obligations or circumstances is ineligible for benefits under the Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897, and an employe whose domestic responsibilities require her to leave employment because the working hours offered to her conflict with such responsibilities is thus ineligible for benefits. [239]
2. Unemployment benefits not payable under the law do not become payable because an employer mistakenly informs an employe that such benefits are available to her. [239]
Judge KRAMER did not participate in this decision.
Argued May 6, 1976, before Judges CRUMLISH, JR., WILKINSON, JR., and BLATT, sitting as a panel of three.
Appeal, No. 1374 C.D. 1975, from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Josephine E. Brown, No. B-127240.
Application to the Bureau of Employment Security for unemployment compensation benefits. Benefits denied. Applicant appealed to the Unemployment Compensation Board of Review. Benefits denied. Applicant appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Michael D. Foglia, for appellant.
Sandra S. Christianson, Assistant Attorney General, with her Daniel R. Schuckers, Assistant Attorney General, and Robert P. Kane, Attorney General, for appellee.
Appellant was employed for approximately five years, until December 20, 1974, as a telephone solicitor. During her employment, appellant worked the day shift, from 9:00 a.m. until 3:00 p.m.
At the time of her separation, appellant was informed by her superiors that night work, on the 4:00 p.m. to 8:00 p.m. shift, was available but not mandatory. After rejecting the night shift due to domestic responsibilities as the mother of two school age children, appellant's supervisors told her she would be laid off until more work was available and advised her to apply for unemployment compensation benefits.
On December 29, 1974, appellant applied for benefits. After a denial by the Bureau of Employment Security, appeal was taken to a referee who, after holding a hearing on February 13, 1975, also denied benefits. The Unemployment Compensation Board of Review (Board), on request of appellant, remanded for additional testimony. A remand hearing was held on May 14, 1975, and thereafter the Board affirmed the referee's denial. The decision of the Board is now appealed to this Court.
Section 402(b)(2) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P. S. § 802(b)(2), provides, in part:
"An employe shall be ineligible for compensation for any week —
". . . .
"(b)(2) In which his or her unemployment is due to leaving work . . . because of a marital, filial or other domestic obligation or circumstances. . . ."
It was found below that the appellant severed the employee-employer relationship when she was unable to accept night hours and she was unable to accept the new shift due to domestic obligations. In Unemployment Compensation Board of Review v. Barnett, 22 Pa. Commw. 144, 348 A.2d 434 (1975), the claimant was available for day work, of which the employer had none, but had to remain home in the evening to care for his sick wife and children. There, as here, the explicit language of Section 402 (b)(2) required us to affirm the Board's denial of benefits.
Appellant asserts there was no substantial evidence to support the conclusion that appellant's separation from her employment was voluntary. We cannot agree. Appellant's own testimony discloses that she would have been able to continue to work if she had been willing to accept new hours.
The record further shows that appellant's supervisors mistakenly informed her that unemployment compensation benefits would be available. Although such misinformation is most regrettable, it cannot alter our decision which is mandated by law.
Accordingly, we enter the following
ORDER
NOW, June 21, 1976, the order of the Unemployment Compensation Board of Review, dated August 15, 1975, affirming the referee's denial of benefits to appellant, is affirmed.
Judge KRAMER did not participate in the decision in this case.