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DONNA BERKERY v. COMMONWEALTH PENNSYLVANIA (04/05/74)

decided: April 5, 1974.

DONNA BERKERY, APPELLANT,
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, APPELLEE



Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Donna Berkery, No. B-116764.

COUNSEL

John G. Siegle, for appellant.

Sydney Reuben, Assistant Attorney General, with him Israel Packel, Attorney General, for appellee.

Judges Wilkinson, Jr., Mencer and Blatt, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 13 Pa. Commw. Page 39]

Donna Berkery (claimant), a 68-year-old woman, was employed as a medical assistant*fn1 by a physician in Upper Darby from May 1960 until March 21, 1972. During her last day of work she became ill and in need of surgery. She was taken to the hospital where she underwent an operation for repair of a hernia. Her physician-employer performed the surgery. She was discharged from the hospital on April 3, 1972 and returned to her home to recuperate.

On April 16, 1972, her employer, Dr. James Carty, came to her residence and she underwent a complete physical examination. Following the examination, and after being advised that she was in "good shape," she was informed by Dr. Carty that he had hired a new medical secretary. During the conversation that followed, the Doctor offered claimant part-time work in surgery a few hours in the afternoon. However, the Doctor would not inform the claimant concerning what compensation she would receive and, although asked to do so, the Doctor made acceptance of the proposed part-time work arrangement a prerequisite to a discussion of wages. Claimant declined part-time employment, absent any information concerning wages.

Claimant had been receiving a salary of $110 per week prior to March 21, 1972. She filed an application

[ 13 Pa. Commw. Page 40]

    for unemployment compensation benefits, effective April 21, 1973. The Bureau of Employment Security, a referee and the Unemployment Compensation Board of Review all issued rulings, decisions or orders denying the claim for benefits. Timely appeals were taken by the claimant, and we reverse.

The denial of benefits was based on the reasoning that the claimant had voluntarily terminated her employment without cause of a necessitous and compelling nature, and she was thus ineligible for compensation benefits under 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. ยง 802(b)(1). This section provides that "[a]n employe shall be ineligible for compensation for any week . . . [i]n which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature. . . ."

We recognize that mere dissatisfaction with one's wages or working assignment does not constitute cause of a necessitous and compelling nature for terminating employment. James v. Unemployment Compensation Board of Review, 6 Pa. Commonwealth Ct. 489, 296 A.2d 288 (1972). Likewise, a refusal to accept other suitable employment from his employer may disqualify an employe from compensation. Zabka Unemployment Compensation Case, 192 Pa. Superior Ct. 511, 162 A.2d 88 (1960); Gryskavicz Unemployment Compensation Case, 188 Pa. Superior Ct. 429, 145 A.2d 863 (1958).

Here, however, claimant could not even learn from her former employer*fn2 what wages she would be paid and, in fact, did ...


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