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ROADWAY EXPRESS v. COMMONWEALTH PENNSYLVANIA (03/21/84)

decided: March 21, 1984.

ROADWAY EXPRESS, INC., 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 Daniel A. Virtue, No. B-200743.

COUNSEL

Richard L. Bush, for petitioner.

Charles G. Hasson, Acting Deputy Chief Counsel, with him Richard L. Cole, Jr., Chief Counsel, for respondent.

Judges Craig, Doyle and Barbieri, sitting as a panel of three. Opinion by Judge Barbieri.

Author: Barbieri

[ 81 Pa. Commw. Page 105]

Roadway Express, Inc. (Roadway) appeals here from an order of the Unemployment Compensation Board of Review (Board) which affirmed a referee's decision granting unemployment compensation benefits to the claimant, Daniel A. Virtue (Claimant). We will remand.

Claimant was employed as a full-time truck driver for Roadway from January 15, 1978 until March 11, 1981, when he was laid off and subsequently placed at his request, on an on-call eligibility list. Under this arrangement Claimant agreed to be on-call twenty four hours per day, seven days per week, and to report to work within two hours of being called. Such calls were made to individuals on on-call status, in the order in which their names appeared on the eligibility list, as work became available which the full-time drivers were unable to perform.

On May 3, 1981, Claimant called Roadway at approximately 8:30 a.m., and again at 12:30 p.m., and

[ 81 Pa. Commw. Page 106]

    was informed by the dispatcher that no work was currently available. At approximately 5:16 p.m., however, the dispatcher called Claimant to inform him that work was available, work which Claimant subsequently refused. Thereafter the Office of Employment Security denied Claimant's request for benefits for the benefit week ending May 9, 1981, on the ground that his earnings would have exceeded his partial benefit credit plus his weekly benefit amount if he had accepted the May 3, 1981 offer of employment. Claimant then appealed from this determination to a referee, and a notice of hearing form was sent to the parties which listed Section 401, 4(u) and 804 of the Unemployment Compensation Law (Law)*fn1 as the subject of the referee's hearing. At the hearing, however, the parties in effect addressed themselves to the question of whether Claimant was disqualified from receiving benefits by the provisions of Section 402(a) of the Law, 43 P.S. § 802(a), a section of the Law which provides, inter alia, that "[a]n employe shall be ineligible for compensation for any week -- (a) in which his unemployment is due to failure, without good cause . . . to accept suitable work when offered . . . by any employer. . . ." In this regard, Claimant did not contend that the offered employment was unsuitable, but instead offered the following explanation to establish why he had good cause for refusing the offered employment:

Well that day I called in around, it was 8:30 in the morning, just before I went to church, to call up and ask them, would they be calling. I called in, they told me, no they wouldn't be getting

[ 81 Pa. Commw. Page 107]

    me today. I came back from church, I called in again around 12:30. And I asked them again. I said, are you going to be getting me today? And they told me, no, they wouldn't get me today. They're not calling anybody. So at that time, I made plans to go out with my family. And as we were leaving out the door around 5:00 to go over and visit my friend, Roadway called and asked me to work, and I refused to work because I had already made ...


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