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FEGELY UNEMPLOYMENT COMPENSATION CASE. (04/13/60)

April 13, 1960

FEGELY UNEMPLOYMENT COMPENSATION CASE.


Appeal, No. 321, Oct. T., 1959, by claimant, from decision of Unemployment Compensation Board of Review, No. B-51321, in re claim of Ray M. Fegely. Decision affirmed.

COUNSEL

David Cohen, for claimant, appellant.

Sydney Reuben, Assistant Attorney General, with him Anne X. Alpern, Attorney General, for Unemployment Compensation Board of Review, appellee.

Frank A. Sinon, with him Rhoads, Sinon & Reader, for employer, intervening appellee.

Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, Watkins, and Montgomery, JJ.

Author: Watkins

[ 192 Pa. Super. Page 142]

OPINION BY WATKINS, J.

This is an unemployment compensation case in which the Bureau of Employment Security, the Referee and the Board of Review all concluded that Ray M. Fegely, the claimant, was not entitled to benefits because his unemployment was due to voluntarily leaving employment without cause of a necessitous and compelling nature, in violation of Section 402(b) of the

[ 192 Pa. Super. Page 143]

Unemployment Compensation Law, 43 PS ยง 802(b).

The claimant was last employed on July 11, 1958, as a burner by Westinghouse Electric Company, Lester, Pennsylvania, at $2.39 per hour. By virtue of the terms of the collective bargaining agreement regarding seniority existing between the union and the company, the claimant, although faced with a lay-off from his job as a burner, could have transferred to a job as a machinist's helper at $1.89 1/2 cents per hour. The claimant refused to take this job and placed himself on the recall list because he preferred to stay in his classification as a burner. It was determined as a fact that the work of a machinist's helper was suitable for the claimant and within his capabilities.

The record leaves much to be desired as it is entirely silent as to a description of the duties of the job of burner and the job of machinist's helper. There is testimony that the job of a burner is skilled and that of a machinist's helper unskilled. The testimony of the claimant was that, "they offered me a job as a helper on heavy machinery and that job wasn't suitable. I hired in there as a burner. I have been a burner for the last 19 years and I want to continue on as a burner." And further in referring to the job as a machinist's helper, "That's non-skilled job, and I want to keep my record clear as a burner. I want to be sure that whenever I go for another job, on my application when I file it, it will be there - down there as a burner, not as a helper, sweeper, janitor or something else like that."

The burden of proof is upon the claimant to establish that he left his employment for a necessitous and compelling cause. Smith Unemployment Compensation Case, 167 Pa. Superior Ct. 242, 74 A.2d 523 (1950); Mollo Unemployment Compensation Case, 186 Pa. Superior Ct. 86, 140 A.2d ...


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