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FRANKLIN & LINDSEY v. COMMONWEALTH PENNSYLVANIA (01/23/79)

decided: January 23, 1979.

FRANKLIN & LINDSEY, INC., 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 Karen Jesiolowski, No. B-141256.

COUNSEL

Edwin B. Barnett, with him Strong, Barnett, Hayes & Hamilton, for petitioner.

William J. Kennedy, Assistant Attorney General, with him Gerald Gornish, Attorney General, for respondent.

Judges Mencer, Blatt and MacPhail, sitting as a panel of three. Opinion by Judge Mencer. Dissenting Opinion by Judge Blatt.

Author: Mencer

[ 40 Pa. Commw. Page 60]

Franklin & Lindsey, Inc. (employer) appeals to this Court from an order of the Unemployment Compensation Board of Review (Board), which reversed a referee's denial of compensation to Karen Jesiolowski (claimant).

The claimant was last employed as a draftsperson-surveyor, having commenced her employment in April of 1975 and working only as a draftsperson until August of 1975 when she began to do field survey work. Beginning in March of 1976, she was required by the employer, against her wishes, to perform secretarial duties, and on May 21, 1976, she was laid off because

[ 40 Pa. Commw. Page 61]

    of a lack of work to be done. Soon thereafter she was again offered the same work by this same employer, but she refused it as not commensurate with her training and experience.

Upon the claimant's application for compensation, the Bureau of Employment Security issued a determination denying benefits pursuant to Section 402(b)(1) of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b)(1), which disallows benefits when "unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature. . . ." The claimant appealed, and the referee affirmed the Bureau's determination under Section 402(a) of the Law, 43 P.S. § 802(a), which denies benefits to an employee who refuses to accept suitable work when it is offered. The claimant then appealed to the Board, which reversed the referee and granted benefits. From this adjudication the employer now appeals.

In unemployment compensation cases, our scope of review is limited to questions of law and, absent fraud, to a determination of whether or not the necessary findings of fact are supported by the evidence. Section 510 of the Law, 43 P.S. § 830. The employer objects here to the Board's finding that the claimant was offered "purely secretarial work" and argues that the finding is not supported by the evidence and that, on the contrary, the employment offered was suitable.

It is true that there was conflict in the testimony here regarding the type of employment offered to the claimant, but there was evidence, in the form of the claimant's direct testimony and corroborating hearsay evidence, on which the Board's decision could well have been based. The Board accepted the claimant's testimony as to the ...


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