No. 80-3-736, Appeal from the Order of the Commonwealth Court dated April 24, 1980 at No. 2887, C.D. 1978, affirming the Order of the Unemployment Compensation Board of Review at Appeal Number B-78-1-P-511
Hal C. Pitkow, Lee B. Balfsky, Philadelphia, for appellant.
Charles Hasson, Elsa D. Newman-Silverstine, Asst. Attys. Gen., for appellee.
O'Brien, C.j., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ. Flaherty, J., files a concurring opinion.
This is an appeal of a Commonwealth Court order affirming the decision of the Unemployment Compensation Board
of Review, which denied appellant's application for unemployment compensation benefits.
Appellant was employed by the Pennsylvania Department of Transportation ("Department") as a construction inspector. His designation was "C.I. II," under which he was eligible to perform both office and outdoor work. For approximately nine and one-half years, until the age of 65, appellant continued to be classified as C.I. II, performing mostly office duties. On December 18, 1977, appellant was informed that he would be reassigned to outdoor work. In order to challenge this reassignment, appellant obtained medical certificates showing that he had paralysis and circulatory problems which inhibited his capacity to perform physical labor. As a consequence of his physical problems, appellant took sick leave on January 1, 1978. During the following February, appellant was offered a position to work at a construction site in Downington, Pennsylvania, approximately 39 miles from his home. Appellant refused this offer, claiming that he could not drive long distances due to his circulatory problems. On May 3, 1978, appellant submitted a form stating that he voluntarily resigned from the Department.
Subsequently, when appellant was denied unemployment compensation benefits, he sought and was granted a hearing before an unemployment compensation referee. The referee denied his application and appellant then appealed to the Unemployment Compensation Board of Review (hereinafter "Board") which affirmed the referee's ruling. The Commonwealth Court affirmed the Board, resulting in the instant appeal. Steffy v. Unemployment Compensation Board of Review, 51 Pa. Commw. 16, 413 A.2d 483 (1980). Because we find that the court below, applied an inappropriate standard, we now reverse.*fn1
Appellant's application for benefits was denied under § 402(b)(1) of the Unemployment Compensation Law which provides, ...