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BEVERLY C. SPONG v. COMMONWEALTH PENNSYLVANIA (08/02/79)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: August 2, 1979.

BEVERLY C. SPONG, 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 Beverly C. Spong, No. B-155257.

COUNSEL

John M. Humphrey, with him Candor, Youngman, Gibson & Gault, for petitioner.

Daniel R. Schuckers, Assistant Attorney General, with him Bernadette A. Duncan, Assistant Attorney General, and Gerald Gornish, Attorney General, for respondent.

Judges Crumlish, Jr., DiSalle and Craig, sitting as a panel of three. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 44 Pa. Commw. Page 561]

Did Beverly C. Spong voluntarily terminate her employment without cause of a necessitous and compelling nature so as to render her ineligible for benefits under Section 402(b)(1) of the Unemployment Compensation Law,*fn1 43 P.S. § 802(b)(1)?

The Unemployment Compensation Board of Review (UCBR) answered in the affirmative. We agree.

[ 44 Pa. Commw. Page 562]

Spong worked as a part-time secretary at Girio Agency for approximately six months when Girio advised her that he needed a full-time secretary with some bookkeeping experience. Four weeks later, a full-time secretary was hired who replaced Spong.

Spong was never offered the full-time position because, Girio contends, her conduct indicated her disinterest in working full-time and discouraged Girio from offering her the full-time position.

UCBR, in finding that "[t]he employer hired a full-time secretary, without specifically offering the position to the claimant because she made it clear that she did not wish to work full-time"*fn2 also found that the duties of the full-time secretary were "substantially similar" to those performed by Spong.

We have in the past considered the discouragement of job offers to be grounds for disqualification under Section 402(a), 43 P.S. § 802(a), and Section 402(d), 43 P.S. § 802(d), where claimants sought placement through referrals by the employment office. In these cases, we held that a claimant's conduct which evidences a lack of a genuine desire to work and be self-supporting and which discourages a prospective employer from offering suitable employment can be the basis for disqualification. See Tokar v. Unemployment Compensation Board of Review, 35 Pa. Commonwealth Ct. 241, 249 n. 5, 385 A.2d 634, 638 n. 5 (1978); Unemployment Compensation Board of Review v. Pinger, 21 Pa. Commonwealth Ct. 61, 342 A.2d 781 (1975);

[ 44 Pa. Commw. Page 563]

Knox v. Unemployment Compensation Board of Review, 12 Pa. Commonwealth Ct. 200, 315 A.2d 915 (1974); Bradley Unemployment Compensation Case, 198 Pa. Superior Ct. 356, 181 A.2d 894 (1962).

Although Spong's ineligibility is grounded in Section 402(b)(1) and her alleged discouragement of employment arises in the posture of discouraging an offer of continuing employment, we will apply the same "good faith" analysis heretofore applied under Sections 402(a) and (d).

Reviewing the record, we find that, upon being hired, Spong had requested to work only morning hours; that she had refused on several occasions Girio's request that she work past 12:30 P.M.; and that during the four-week period between Girio's informing her of his intention to hire a full-time secretary and her replacement, Spong never indicated any willingness to work full time, much less a desire to be given consideration for the job.

In light of her expressed desire to work only in the morning, we feel it was incumbent upon her to investigate the new position and to express her willingness to be considered for full-time employment before we can say as a matter of law that her conduct evidenced her genuine desire to work and be self-supporting.

In unemployment compensation cases, the claimant has the burden of proving eligibility. Veneski v. Unemployment Compensation Board of Review, 29 Pa. Commonwealth Ct. 154, 370 A.2d 382 (1977). We conclude that Spong has not satisfactorily shouldered her burden.

Accordingly, we

Order

And Now, this 2nd day of August, 1979, the order of the Unemployment Compensation Board of Review dated March 22, 1978, denying benefits to Beverly C. Spong is hereby affirmed.

Disposition

Affirmed.


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