Empire Intimates v. Unemployment Compensation Board of Review

McGINLEY, Judge,

dissenting.

I respectfully dissent to the majority’s conclusion that claimant did not have cause of a compelling and necessitous nature to voluntarily quit her employment with Empire Intimates (Empire).

A claimant who alleges that he/she terminated employment for necessitous and compelling reasons has the burden of establishing the existence of such reasons. Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 378 A.2d 829 (1977). The majority reversed the Board’s grant of benefits by concluding that claimant failed to meet this burden. I disagree.

In Taylor, the Pennsylvania Supreme Court held:

That “good cause” for voluntarily leaving one’s employment (i.e., that cause which is necessitous and compelling) results from circumstances which produce pressure to terminate employment that is both real and substantial, and which would compel a reasonable person under the circumstances to act in the same manner.

Id. at 359, 378 A.2d at 832-33. In addition, “claimant must prove that she acted with ordinary common sense in quitting her job, that she made a reasonable effort to preserve her employment, and that she had no other real choice than to leave her employment.” Majority opinion at 664 (citing Malloy v. Unemployment Compensation Board of Review, 105 Pa.Commonwealth Ct. 183, 523 A.2d 834 (1987)).

The record reflects that claimant left her job with Empire only after being told by employer that she had to choose between the two jobs. In a statement given at the Job Center, claimant described how she went to school for a year to become a hairstylist and finally obtained a part time job in a beauty salon. Summary of Interview, May 27,1993, at 1; Reproduced Record (R.R.) at 6a. When her hours at the salon began to conflict with her hours at Empire, claimant stated that employer “called me to the break room and said another job was no excuse for me to leave early and I’d have to choose which job.” Id. Employer’s Summary of Job Separation states essentially the same story and employ*666er admits that claimant was told “she was needed here on a full time basis, and she would have to choose which job to keep.” Employer Summary of Job Separation, June 1, 1993, at 2; R.R. at 9a.

I believe that these statements reflect that Employer effectively gave claimant an ultimatum, either leave her job at the beauty salon, a job for which she attended school for a year in order to qualify, or leave her job at Empire. Because Employer made no attempt to accommodate claimant and directed claimant to choose between jobs, claimant had a necessitous and compelling reason to leave Empire Intimates.

Accordingly, I would affirm the Board’s decision and grant claimant benefits.