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ROBERT L. HECKMAN v. COMMONWEALTH PENNSYLVANIA (04/13/84)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: April 13, 1984.

ROBERT L. HECKMAN, 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 Robert L. Heckman, No. B-208039.

COUNSEL

James M. Horne, McQuaide, Blasko, Schwartz, Fleming & Faulkner, Inc., for petitioner.

Richard F. Faux, Associate Counsel, with him, Richard L. Cole, Jr., Chief Counsel, for respondent.

Judges Williams, Jr., Barry and Palladino, sitting as a panel of three. Opinion by Judge Williams, Jr.

Author: Williams

[ 81 Pa. Commw. Page 559]

Robert L. Heckman (claimant) petitions for review of the order of the Unemployment Compensation Board of Review (Board) affirming the decision of the referee denying benefits under Section 401(c)*fn1 and 402(b)*fn2 of the Unemployment Compensation Law (Act), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, and holding the claimant to be in receipt of a fault overpayment of benefits under Section 804(a)*fn3 of the Act.

[ 81 Pa. Commw. Page 560]

The claimant, who, for the weeks at issue, filed claims for Extended Benefits (EB),*fn4 accepted a temporary job in November, 1981 with Orenstein & Koppel, Inc. (employer) in New Jersey. He is a diesel mechanic who was hired to dismantle a piece of heavy equipment. At the time of hire, it was contemplated by the claimant and the employer that his employment would last for four weeks. Also, at the time of hire, the claimant explained to the employer that his wife had left him and that he was responsible for the care of his two children, ages fifteen and seven. He made provisions for alternate care for his children during the week and he returned to his home in the Bellefonte, Pa., area on weekends to care for his children.

After working for three weeks, he completed this project and the employer offered him a permanent job. Due to the absence of his wife and his need to care for his children, the claimant rejected the employer's offer.

Although there is no testimony on this point, the notes of the Office of Employment Security (OES) representative on the reverse of the claimant's Summary of Interview form indicate that the claimant could not obtain the services of another person to care for his children after the first three weeks that he spent in New Jersey. These notes also reveal that the proffered job would have required the claimant to travel throughout the United States.*fn5

[ 81 Pa. Commw. Page 561]

As has been indicated, the record herein reveals that for the weeks at issue, the claimant filed claims under the EB Program; however, neither the OES, the referee nor the Board took cognizance of the applicability of the EB provisions in determining his eligibility. This failure is material to our review because even though Section 402-A*fn6 renders an EB claimant ineligible if he would be ineligible under Section 402(b), and even though Section 402(b) mandates a determination of whether the work which was voluntarily terminated was "suitable" as defined by Section 4(t) of the Act,*fn7 the EB provisions of the Act

[ 81 Pa. Commw. Page 562]

    set forth an alternative definition of "suitable work" which must be utilized in determining whether an EB claimant voluntarily terminated employment for a necessitous and compelling reason by not accepting an offer of continuing employment.*fn8

[ 81 Pa. Commw. Page 563]

In reaching his decision, the referee made findings of fact pertinent to Sections 401(c), 402(b) and 804(a); however, he made no findings from which a determination could be made under the relevant EB provisions. Without such findings, we are unable to perform our appellate review and must remand this case to the Board so that the necessary fact-finding may be accomplished. Page's Department Store v. Velardi, 464 Pa. 276, 346 A.2d 556 (1975); Bornstein v. Unemployment Compensation Board of Review, 69 Pa. Commonwealth Ct. 521, 451 A.2d 1053 (1982).*fn9

Order

And Now, this 13th day of April, 1984, the order of the Unemployment Compensation Board of Review, Decision No. B-208039, is vacated and the record is remanded to the Board for the making of further findings, and, if necessary, for further proceedings, in accordance with this Opinion.

Jurisdiction relinquished.

Disposition

Vacated and remanded.


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