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COUNTY ALLEGHENY v. COMMONWEALTH PENNSYLVANIA (02/05/85)

decided: February 5, 1985.

COUNTY OF ALLEGHENY, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeal from the Order of the Unemployment Compensation Board of Review in the case of In Re: Claim of Mary Patricia Brandl, No. B-207355.

COUNSEL

James H. McLean, County Solicitor, with him, Timothy W. Pawol, Assistant County Solicitor, for petitioner.

Richard F. Faux, Associate Counsel, with him, Charles G. Hasson, Acting Deputy Chief Counsel, for respondent.

Judges Rogers and Williams, Jr. and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 87 Pa. Commw. Page 405]

The County of Allegheny (petitioner) has filed a petition for review of orders of the Unemployment Compensation Board of Review (board) affirming a referee's awards of compensation for unemployment during two weeks in July, 1981, to eight registered public health nurses.

The claimants in these consolidated proceedings were employed as public health nurses by the petitioner at public health centers and clinics at locations throughout the county. On July 8, 1981, the licensed

[ 87 Pa. Commw. Page 406]

    practical nurses, nurses aides and other employees at the Kane Hospital, a geriatric hospital operated by the petitioner, initiated a work stoppage. The claimants were not members of the unions involved in the work stoppage. On July 10, 1981, the petitioner announced the closing of its public health centers and clinics and instructed the registered public health nurses employed at the closed facilities to report for work at the Kane Hospital. The eight claimants did not report to the Kane Hospital for various reasons including in the case of some that they did not want to fill positions made vacant by the striking employees. The work stoppage ended on July 30, 1981, and the claimants resumed their work at the public health centers and clinics.

The Office of Employment Security (OES) in eight separate decisions determined that the claimants were not eligible for unemployment compensation either because they had refused an offer of suitable employment; or participated in a work stoppage; or had voluntarily quit their employment. The claimants appealed and, following a hearing, the referee reversed the OES and awarded benefits. The board affirmed the referee's decisions.

The petitioner first contends that the board erred by not reversing the referee's decisions on the basis of Section 402(a) of the Unemployment Compensation Law (Act), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(a), which renders ineligible employees whose unemployment is due to failure, without good cause, to apply for or to accept suitable work. The board correctly held that the work at Kane Hospital was not suitable work under the definition of that phrase at Section 4(t) of the Act, 43 P.S. § 753(2):

"Suitable Work" means all work which the employe is capable of ...


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