Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of James A. Harvey, No. B-114950.
John G. Wayman, with him John T. Tierney, III, and Reed, Smith, Shaw & McClay, for appellant.
Sydney Reuben, Assistant Attorney General, with him Israel Packel, Attorney General, for appellee.
Judges Crumlish, Jr., Kramer and Blatt, sitting as a panel of three. Opinion by Judge Crumlish, Jr.
[ 14 Pa. Commw. Page 538]
An employer appeals here from a determination of the Unemployment Compensation Board of Review*fn1 granting unemployment compensation to James A. Harvey for the week ending May 18, 1972. The following findings of fact made by the referee and adopted by the Board adequately frame the context in which we consider the legal issue raised by this appeal.
[ 14 Pa. Commw. Page 539]
"1. Claimant was last employed by Fisher Body Div., G.M.C., Box 158, McKeesport, Pa., as a small press operator at $3.15 per hour, plus incentive, plus a cost of living, from April 15, 1968 to October 7, 1971, his last day of work, when he was laid off due to lack of work.
"2. Claimant was recalled by telephone to his former position and scheduled to report on February 21; February 22 or February 23, 1972.
"3. The employer notified the Bureau of Employment Security that claimant had been recalled on February 25, 1972; however, the employer could not furnish a copy of the recall letter to the Bureau for the reason that the recall had been made by telephone.
"4. Claimant alleged illness and promised to report at a later date and never did report, and on February 28, 1972, his seniority was cancelled with the Fisher Body Division of G.M.C.
"5. Claimant did not present any medical evidence to the employer nor to the Bureau until after his senority (sic) was cancelled, when he presented medical evidence that he was able to return to work as of March 6, 1972."
Based upon these findings, the referee as well as the Board concluded that, although the recall of February 21, 1972 constituted an offer of work,*fn2 Harvey "cannot be disqualified under Section 402(a) of the Law*fn3 for the reason that the employer made the recall by telephone and under the Board policy such recall should be made by letter ...