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HERBERT A. HAMMERSTONE v. COMMONWEALTH PENNSYLVANIA (10/21/77)

decided: October 21, 1977.

HERBERT A. HAMMERSTONE, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Herbert A. Hammerstone, No. B-133904.

COUNSEL

Joseph M. Dougherty, II, for petitioner.

Daniel R. Schuckers, Assistant Attorney General, with him Sydney Reuben, Assistant Attorney General, and Robert P. Kane, Attorney General, for respondent.

President Judge Bowman and Judges Mencer and Blatt, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 32 Pa. Commw. Page 257]

This appeal has been taken under provisions of the Unemployment Compensation Law*fn1 (Act) by Herbert A. Hammerstone (claimant) from a denial of benefits by the Unemployment Compensation Board of Review (Board). The Board had affirmed the referee's denial of benefits. Since we agree with this result, we will affirm.

For 15 months the claimant worked for Tele Sales, Inc., where his duties involved soliciting, by telephone, renewal subscriptions to the magazine, TV Guide. On November 21, 1975, he was laid off when the company cut back its operations. At about the same time, Raymond

[ 32 Pa. Commw. Page 258]

Wilson, president of both Tele Sales and Valfor Enterprises, Ltd., an affiliate company, offered the claimant a position with Valfor. The claimant did not accept. The duties of the offered job involved telephone solicitation of new subscriptions for TV Guide and Philadelphia Magazine on behalf of Children's Hospital of Philadelphia. While Wilson testified to the similarity in pay, benefits, and working conditions of the two jobs, the claimant testified as to the differences.

At the start of the hearing before the referee, it was noted that the Bureau had denied benefits based on Section 402(a) of the Act, 43 P.S. § 802(a), for a refusal by the claimant to accept suitable work. The referee found that the claimant was laid off, that the offered job with Valfor involved similar duties, working conditions, pay, and fringe benefits and that the claimant elected to become unemployed rather than accept the job with Valfor.*fn2 The claimant was found ineligible for benefits, based on Section 402(b)(1) of the Act, 43 P.S. § 802(b)(1) (voluntarily leaving work). When the Board disallowed a further appeal, the claimant appealed to this Court.

Under Section 402 of the Act, an employe shall be ineligible for compensation for any week --

(a) In which his unemployment is due to failure, without good cause, . . . to accept suitable work when offered to him . . . by any employer. . . .

(b)(1) In which his unemployment is due to voluntarily leaving work without cause of a necessitous ...


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