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BARRY W. LACE v. COMMONWEALTH PENNSYLVANIA (02/17/81)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: February 17, 1981.

BARRY W. LACE, 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 Barry W. Lace, No. B-172393.

COUNSEL

Emily J. Leader, for petitioner.

Francine Ostrovsky, Assistant Attorney General, with her James K. Bradley, Assistant Attorney General, Richard Wagner, Chief Counsel, and Harvey Bartle, III, Acting Attorney General, for respondent.

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

Author: Blatt

[ 56 Pa. Commw. Page 623]

This is an appeal by Barry W. Lace (petitioner) from a determination of the Unemployment Compensation Board of Review (Board) terminating his benefits for failure to accept suitable employment under Section 402(a) of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. ยง 802(a).*fn1

[ 56 Pa. Commw. Page 624]

The petitioner was employed as a coordinator of volunteer services for the Institute of Research and Development in Retardation at an annual salary of $14,500 until his last day of employment on October 15, 1978. He received unemployment compensation benefits until March 2, 1979, at which time, as the Board found, he failed to accept a referral to suitable employment with Cumberland Perry Mental Health and Mental Retardation at a salary of $9,195 per year. He stated that he was not qualified for the work available. The Bureau (now Office) of Employment Security found that the petitioner had refused to accept suitable employment and terminated his benefits. After a hearing, the denial of benefits was upheld by both the referee and the Board and this appeal followed.

The petitioner contends that he did not refuse the referral, but only inquired as to the nature of the work and questioned its suitability for him. Alternatively he argues that he had good cause to refuse in that the employment offered was unsuitable because it required education and skills which he did not possess and paid substantially less than his previous employment.

We cannot agree with the petitioner's initial contention that he did not refuse the referral. When contradictory testimony is presented at a hearing, as was the case here, this Court must defer to the Board's role as the ultimate factfinder to determine the credibility

[ 56 Pa. Commw. Page 625]

    to be given the witnesses, Jenkins v. Unemployment Compensation Board of Review, 49 Pa. Commonwealth Ct. 301, 410 A.2d 980 (1980), and, after reviewing the record, we must sustain the finding that the petitioner failed to accept the referral.

In relation to the petitioner's alternative argument, he had the burden of proving that the work available was not suitable, Eichman v. Unemployment Compensation Board of Review, 49 Pa. Commonwealth Ct. 21, 409 A.2d 1389 (1980), or that he had good cause for refusing the referral. Veneski v. Unemployment Compensation Board of Review, 29 Pa. Commonwealth Ct. 154, 370 A.2d 382 (1977). Where the Board has ruled against the party with the burden of proof our scope of review is limited to a determination as to whether or not the findings of fact are consistent with each other and with the conclusions of law and can be sustained without a capricious disregard of competent evidence. Sweigart v. Unemployment Compensation Board of Review, 47 Pa. Commonwealth Ct. 421, 408 A.2d 561 (1979).

The petitioner claims that the work was unsuitable*fn2 because: (1) the job description was for a caseworker

[ 56 Pa. Commw. Page 626]

    to handle individuals while his specialty was in administration; (2) he did not have the suggested educational background; and (3) the pay was substantially lower than in his previous employment and lower than in three other appropriate employment prospects about which he was waiting to hear. However, after reviewing the evidence, we must again defer to the Board's factfinding function and its assessment of the credibility of the testimony. Initially, we question the petitioner's "specialty" as an administrator. His five-year employment as a coordinator of volunteer services does not seem to be comparable to that of the skilled craftsman who received extensive instruction and had 18 years of experience in Bethlehem Steel Corporation v. Unemployment Compensation Board of Review, 10 Pa. Commonwealth Ct. 292, 310 A.2d 697 (1973). Secondly, we cannot say that the petitioner's academic degree in social sciences and English, when coupled with his experience in programs for the mentally retarded, does not meet the educational requirements of the caseworker job description: psychology, social services or related fields. And, as to the admittedly substantial decrease in the pay that he was offered compared to that in his previous employment, we note that a reduction in remuneration in and of itself will not negate the suitability of work, Eichman v. Unemployment Compensation Board of Review, supra, and we cannot say that the Board capriciously disregarded competent evidence when it found that the compensation for the caseworker position was within the prevailing wage for the labor market in which the petitioner was seeking employment. Finally, we find that the petitioner's five months of unemployment approaches the maximum time within which he could legitimately continue to seek a position within his

[ 56 Pa. Commw. Page 627]

"specialty"*fn3 and he, therefore, should have at least been willing to accept the referral and set up an interview to investigate the proffered employment opportunity. Bethlehem Steel Corporation v. Unemployment Compensation Board of Review, supra.

The petitioner's argument that he had good cause to refuse the referral is premised on the same facts discussed above, and we must consequently uphold the Board's finding that his conduct evidenced a lack of good faith effort to obtain employment which is an essential element for establishing good cause for failing to accept a referral. Ennis v. Unemployment Compensation Board of Review, 18 Pa. Commonwealth Ct. 344, 336 A.2d 438 (1975).

We will, therefore, affirm the order of the Board.

Order

And, Now, this 17th day of February, 1981, the order of the Unemployment Compensation Board of Review in the above-captioned matter is affirmed.

Disposition

Affirmed.


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