Unemployment compensation — Voluntary termination — Able and available to work — Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897 — Change of denial basis — New findings — Hearing.
1. It is improper for the Unemployment Compensation Board of Review to change the basis for the denial of a claim for benefits under the Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897, from that of voluntary termination without cause of a necessitous and compelling nature to one based on a new finding that the claimant was not able and available for suitable work, without holding a hearing or receiving additional evidence and giving the claimant an opportunity to be heard on that issue. [460-1]
OPINION BY JUDGE MENCER, December 9, 1976:
Carole L. Chiaro (claimant) was last employed by the Bureau of Employment Security (Bureau). Her last day of work was October 18, 1974 when she terminated her employment upon the advice of her physician. She applied for unemployment compensation benefits, and the Bureau denied her application on the basis that she failed to demonstrate that her voluntary termination resulted from a cause of a necessitous and compelling nature. Claimant appealed this determination, and a referee reversed the decision of the Bureau and granted benefits to the claimant.
On December 21, 1974, the Bureau filed a petition for appeal with the Unemployment Compensation Board of Review (Board). The Board, without holding a hearing or receiving additional evidence, made a new finding that "[t]he claimant is not able and available for suitable work." On the basis of this new finding, the Board ordered that benefits to the claimant be denied. This appeal followed and we remand.
The Board acknowledges that, without notice to claimant, it changed the rationale for denial of benefits from Section 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)
(terminating employment without a necessitous and compelling reason), to Section 401(d) of the Act, 43 P. S. § 801(d), which requires as a condition of eligibility that the claimant be "able to work and available for suitable work."
Being of the view that a denial of benefits is unjustified lacking an opportunity for the claimant to be heard on the question of her availability for suitable work and further that a grant-of-benefits determination would not be proper on the present record, we will remand the case to the Board to afford the claimant an opportunity to present evidence relative to the "able and available" issue. See Unemployment Compensation Board of Review v. Crilly, 25 Pa. Commw. 21, 358 A.2d 739 (1976); Unemployment Compensation Board of Review v. Grossman, 22 Pa. Commw. 550, 349 A.2d 779 (1976); Unemployment Compensation Board of Review v. Kells, 22 Pa. Commw. 479, 349 A.2d 511 (1975).
We therefore issue the following
ORDER
AND NOW, this 9th day of December, 1976, the record is remanded to the Unemployment Compensation Board of Review for further proceedings not inconsistent with the above opinion.