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ESMER SMITH v. COMMONWEALTH PENNSYLVANIA (02/27/81)

decided: February 27, 1981.

ESMER SMITH, 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 Esmer Smith, No. B-172435.

COUNSEL

Oscar N. Gaskins, for petitioner.

Francine Ostrovsky, Assistant Attorney General, with her James 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 MacPhail.

Author: Macphail

[ 57 Pa. Commw. Page 174]

Esmer Smith (Claimant) has filed this appeal from an order of the Unemployment Compensation Board of Review (Board) denying benefits pursuant to Section 402(a) of the Pennsylvania Unemployment Compensation Law (Act).*fn1 We affirm.

[ 57 Pa. Commw. Page 175]

The facts of this case are not in dispute. Claimant was last employed as a Blindstitch Operator by Bergman Knitting Mills. Her last day of work was November 23, 1978 and, thereafter, she began to receive benefits under the Act. On March 5, 1979, Claimant was directed by the Bureau (now Office) of Employment Security to report to Louson's Knitting Mill, where a job was available for a Blindstitch Operator, on March 7, 1979. Claimant reported to Louson's as directed and was interviewed by a representative of the prospective Employer who informed her that she would be expected to work from 8 a.m. to 4 p.m. five days per week. Claimant told the interviewer that she would have difficulty arriving precisely at 8 a.m. and could often be as much as fifteen minutes late. Claimant explained that the cause of her difficulty was the need to escort her three year old son to school each morning. Louson's chose not to hire Claimant because of her inability to guarantee that she would report for work on time.*fn2

The Bureau concluded that Claimant had refused suitable employment and denied benefits. The referee affirmed the Bureau's reasoning and result. The Board affirmed the denial of benefits, but based this conclusion on Claimant's failure to attempt to secure a babysitter to escort her son to school.

[ 57 Pa. Commw. Page 176]

As we have noted, the facts of this case are not in dispute. Claimant does not challenge the Board's finding that the employment available at Louson's was suitable for her. Since the findings of the Board are based on substantial evidence, they will be affirmed. Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 378 A.2d 829 (1977). The issue presented herein is whether Claimant refused suitable employment and, if so, whether she refused suitable employment for good cause. This presents an issue of law subject to determination by this Court. Trexler v. Unemployment Compensation Board of Review, 27 Pa. Commonwealth Ct. 180, 365 A.2d 1341 (1976).

Claimant argues that she did not receive an offer of employment from Louson's and, therefore, could not have refused work. While the record does not contain the wording of an offer of employment, it does indicate that Claimant would have been hired if she could report for work at 8 a.m. Indeed, during the referee's hearing, Claimant testified that she was offered the work. Further, Louson's remarks to representatives of the Bureau indicate that Claimant was not hired because she could not report for work on time.

A claimant for unemployment compensation benefits need not explicitly reject an offer of employment to have refused suitable employment within the meaning of Section 402(a). Knox v. Unemployment Compensation Board of Review, 12 Pa. Commonwealth Ct. 200, 315 A.2d 915 (1974). If, during the interview, the claimant discourages the prospective employer from hiring her, that is sufficient for the Board to find a refusal to accept suitable work. Mohl v. Unemployment Compensation Board of Review, 14 Pa. Commonwealth Ct. 69, 321 A.2d ...


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