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ANDREW MELHORN v. COMMONWEALTH PENNSYLVANIA (04/07/81)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: April 7, 1981.

ANDREW MELHORN, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW AND C. C. KOTTCAMP & SON, INC., RESPONDENTS

Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Andrew Melhorn, No. B-174829.

COUNSEL

Frank I. Goldenberg, with him Robert H. Griffith, and Michael J. Brillhart, Markowitz, Kagen & Griffith, for petitioner.

Karen Durkin, Assistant Attorney General, with her James K. Bradley, Assistant Attorney General, Richard Wagner, Chief Counsel, and Harvey Bartle, III, Acting Attorney General, for respondents.

Judges Mencer, Craig and Palladino, sitting as a panel of three. Opinion by Judge Mencer. This decision was reached prior to the resignation of Judge Wilkinson, Jr.

Author: Mencer

[ 58 Pa. Commw. Page 337]

This is an appeal by Andrew Melhorn (claimant) from a decision of the Unemployment Compensation Board of Review (Board) which affirmed an order of the referee determining that claimant was subject to recoupment of nonfault overpayments, pursuant to Section 804(b) of the Unemployment Compensation Law (Act),*fn1 and denying further benefits, pursuant to Section 402(a) of the Act.*fn2 We affirm.

[ 58 Pa. Commw. Page 338]

On January 7, 1979, claimant applied for and received benefits after being laid off from his position with C. C. Kottcamp as a truck driver and stockroom worker. On March 29, 1979, the Office of Employment Security (OES) held a job referral interview with claimant concerning possible employment with a construction firm. After claimant failed to accept the referral, the Board determined that claimant was ineligible for benefits for refusing, without good cause, to apply for suitable work.

Claimant argues on appeal that (1) the OES representative supplied insufficient information about the potential job to constitute a bona fide offer of employment and (2) the OES representative misled claimant about his legal responsibilities in regard to a job referral.

In support of his first argument, claimant alleges that, although his potential wage rate was discussed, he was never told the name or the location of the employer. We find this argument to be without merit, since it is clear from claimant's testimony that he knew a position was available for him,*fn3 even if all of the details were not discussed. Furthermore, claimant's testimony indicates that he discouraged the referral,*fn4 and in light of this evidence, it is indeed plausible

[ 58 Pa. Commw. Page 339]

    that the specifics of the job would never be reached.

In furtherance of his second argument, claimant alleges that, after he explained that he needed only six more months of union work to qualify for a pension, the OES representive responded that claimant "didn't have to take the job." Claimant testified that, as a result of their conversation, he was misled by the OES representative to believe that he could refuse the job referral. In view of claimant's admission that he received the unemployment compensation pamphlet and understood that he could be denied benefits for refusing to apply for suitable work, claimant's argument must fail. See Remaly v. Unemployment Compensation Board of Review, 55 Pa. Commonwealth Ct. 551, 423 A.2d 814 (1980).

Furthermore, the OES representative testified that, based upon the record he made with respect to the interview,*fn5 claimant refused the job referral. The OES representative indicated on the record that claimant was "not available due to pension plan," and checked off the box next to the printed statement "failed to report for referral." Although claimant testified that he did not turn down the referral, resolution of credibility is an issue for the Board. Santiago v. Unemployment Compensation Board of Review, 43 Pa. Commonwealth Ct. 276, 402 A.2d 300 (1979).

Therefore, we are satisfied that the Board had substantial, competent evidence upon which to base its

[ 58 Pa. Commw. Page 340]

    finding that claimant refused, without good cause, to apply for suitable work offered to him by the OES.

Accordingly, we enter the following

Order

And Now, this 7th day of April, 1981, the order of the Unemployment Compensation Board of Review, dated August 13, 1979, denying benefits to Andrew Melhorn and directing the recoupment of a nonfault overpayment in the amount of $278, is affirmed.

This decision was reached prior to the resignation of Judge Wilkinson, Jr.

Disposition

Affirmed.


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