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GREG TREON v. COMMONWEALTH PENNSYLVANIA (10/29/80)

decided: October 29, 1980.

GREG TREON, 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 Gregory L. Treon, No. B-168871.

COUNSEL

Peter B. Macky, with him Robert H. Steinberg, for petitioner.

Charles G. Hasson, Assistant Attorney General, with him Richard Wagner, Chief Counsel and Edward G. Biester, Jr., Attorney General, for respondent.

Judges Wilkinson, Jr., Rogers and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 54 Pa. Commw. Page 413]

This is an appeal by Greg Treon (Claimant) from an order of the Unemployment Compensation Board of Review (Board) dated July 13, 1979 denying Claimant unemployment compensation benefits.

[ 54 Pa. Commw. Page 414]

Claimant was employed by Engineered Masonry (Employer) for approximately six months as a bricklayer at a salary of $10.70 per hour. Claimant lived in Sunbury and worked in Shamokin. When the construction project was completed on October 10, 1978, the Employer offered the Claimant similar work in the Philadelphia area at the same rate of pay. Claimant did not accept the job but informed his Employer that he would think about it. Claimant never contacted his Employer after the last day of work in Shamokin. Claimant filed for unemployment compensation benefits which were denied by the Bureau (now Office) of Employment Security (Bureau). Claimant appealed. At the referee's hearing, Claimant testified that he did not accept the job because it would last only for two months, it would be too far and too expensive to travel and that the work might not be steady owing to anticipated weather conditions. Claimant also testified that he did not want to relocate to the Philadelphia area. He further testified that he was not told he might have to move to another job site. The referee held that the Claimant voluntarily terminated the employment relationship without cause of necessitous and compelling nature and denied unemployment compensation benefits to the Claimant under the provisions of Section 402(b)(1) of the Unemployment Compensation Law (Law).*fn1 In his opinion, the referee stated that the offer of continued employment involved suitable work within the meaning of Section 4(t) of the Law*fn2 and that the Claimant had not taken the minimal steps to preserve the employer-employee relationship. Claimant appealed to the Board which affirmed the decision

[ 54 Pa. Commw. Page 415]

    of the referee holding that Claimant failed to sustain his burden of showing that he quit for necessitous and compelling reasons. This appeal followed.

Claimant's challenge to the Board's decision raises several issues before this Court. They are: (1) whether the Board committed an error of law by concluding the Claimant voluntarily quit under Section 402(b)(1) rather than determining eligibility under Section 402(a) -- good cause for refusing suitable work,*fn3 (2) assuming arguendo Section 402(b)(1) was legally correct whether the Board committed legal error in concluding that a construction worker who quit his job with his same employer at the same rate of pay but at a new job site, 168 miles from his home had necessitous and compelling reasons to quit, and (3) whether the Board capriciously disregarded competent evidence in making its findings and decision.

As to the first issue, this Court has held that when a Claimant is offered and refuses another position in the same company when a present job is terminated, Section 402(b) rather than Section 402(a) applies. Dinges v. Unemployment Compensation Board of Review, 28 Pa. Commonwealth Ct. 306, 369 A.2d 898 (1977) and Unemployment Compensation Board of Review v. Fields, 24 Pa. Commonwealth Ct. 347, 355 A.2d 836 (1976). Although both Dinges and Fields involved a change in the work schedule for the same or similar work for the same employer, the principle remains the same. In the case at bar, Claimant was offered similar work, at the same pay but in a different location.

We also find the question of whether 402(a) or 402(b)(1) should be applied is immaterial in the case at bar. This Court in Hammerstone v. Unemployment Compensation ...


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