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MERREL W. LUMADUE v. COMMONWEALTH PENNSYLVANIA (09/06/78)

decided: September 6, 1978.

MERREL W. LUMADUE, JR., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE, RESPONDENT



Appeal from the Order of the Department of Public Welfare in case of Appeal of Merrel W. Lumadue, Jr., No. 29,909, March 18, 1977.

COUNSEL

Paul Osborne, with him Catherine A. Davis, for petitioner.

Linda M. Gunn, Assistant Attorney General, for respondent.

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

Author: Mencer

[ 37 Pa. Commw. Page 430]

This is an appeal by Merrel W. Lumadue, Jr., from the order of the Department of Public Welfare (DPW) affirming the denial of assistance by the Clearfield County Board of Assistance. DPW determined that claimant failed to meet the eligibility requirements of Section 432.3 of the Public Welfare Code, Act of June 13, 1967, P.L. 31 (Act), as amended, added by Section 5 of the Act of July 9, 1976, P.L. 993 (effective September 13, 1976) 62 P.S. ยง 432.3.

The undisputed findings of fact reveal that claimant was last employed as a custodian in the housekeeping department at Clearfield Hospital at $2.97 per hour, where he had worked approximately two and one-half years. He was discharged on September 22, 1976 because he refused to accept a temporary assignment as an orderly in the operating room when the regular orderly was absent due to a death in his family. Claimant previously had worked as an orderly and he received a higher rate of pay for the temporary work.

Claimant applied for financial assistance on December 3, 1976, 72 days after his discharge. The application was denied by the County Board of Assistance.*fn1 Claimant appealed. After a hearing, the hearing examiner affirmed the denial. He concluded that claimant refused a reasonable work assignment at the hospital without justification and thereby failed to retain employment as required by Section 432.3 of the Act and Section 3182 of the DPW-OIM PA Manual regulations.*fn2

[ 37 Pa. Commw. Page 431]

The decision was reviewed by the DPW Hearing and Appeals Unit (Appeals Unit) and remanded for further findings of fact regarding claimant's attempts to find work. On remand, the following relevant findings were made:

2. The appellant made no applications for employment from the time of his dismissal -- September 22, 1976 until he began receiving assistance on January 13, 1977. His only effort was to inquire of friends if they knew of any employer who was hiring.

3. The appellant had no interviews with employers. He was interviewed by [the Bureau of Employment Security] counselor on two occasions about a referral for employment. The first occasion was about a month after his dismissal. The positions were an auto body repair trainee starting at a wage of $2.50 an hour, the second as an auto mechanic trainee at $3.00 an hour. When the appellant advised that his grievance filed to obtain his position at the hospital was in arbitration, and if ...


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