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THOMAS C. LEVAN v. COMMONWEALTH PENNSYLVANIA (09/06/85)

decided: September 6, 1985.

THOMAS C. LEVAN, 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 Thomas C. Levan, No. B-221665.

COUNSEL

Louis M. Shucker, for petitioner.

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

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

Author: Palladino

[ 91 Pa. Commw. Page 509]

Thomas C. Levan (Claimant) is appealing from an order of the Unemployment Compensation Board of Review (Board) which affirmed the decision of the Referee denying benefits based on the Claimant's refusal of suitable work without good cause under Section 402(a) of the Pennsylvania Unemployment Compensation Law (Law).*fn1

The following is a summary of the facts, as found by the Referee and accepted by the Board. The Claimant had been employed by Knoll International (Employer) as an upholsterer and assembler at the rate of $8.99 per hour. On January 7, 1983, the Claimant was laid off and became eligible for unemployment compensation benefits. On or about April 22, 1983, the Claimant was recalled to work as a hand sander at a rate of $8.37 per hour. Prior to this, the Claimant had been recalled to work at a position which paid a higher rate than his original position. The Claimant rejected both positions stating that he believed that the recalls violated the employer's recall and seniority status policy. As a result, the Office of Employment Security terminated the Claimant's benefits. No collective bargaining agreement covering recalls and seniority status exists between the employer and employees. The Referee found and the Board accepted that the Claimant's belief that Knoll International had violated its recall policy was not sufficient to constitute good cause and thereby justify a refusal of suitable work.

When determining whether a Claimant is ineligible for benefits under Section 402(a), the issues of suitability of work and good cause must be looked at separately, as they are distinct concepts. Lynch v. Unemployment Compensation Board of Review, 35 Pa. Commonwealth Ct. 159,

[ 91 Pa. Commw. Page 510384]

A.2d 1379 (1978). Suitability of work and good cause are questions of law, and are subject to the review of this Court. Gettig Engineering v. Unemployment Compensation Board of Review, 81 Pa. Commonwealth Ct. 416, 473 A.2d 749 (1984).

Section 4(t) of the Law, 43 P.S. ยง 3753(t), defines "suitable work" as:

[A]ll work which the employe is capable of performing. In determining whether or not any work is suitable for an individual, the department shall consider the degree of risk involved to his health, safety and morals, his physical fitness, prior training and experience, and the distance of the available work from his residence. The department shall also consider among other factors the length of time he has been unemployed and the reasons therefor, the prospect of obtaining local work in his customary occupation, his previous earnings, the prevailing condition of the labor market generally and particularly in his usual trade or occupation, prevailing wage rates in his usual trade or occupation, and the permanency of his residence.

It is the Claimant's burden to prove that the work offered to him was unsuitable. Davis v. Unemployment Compensation Board of Review, 71 Pa. Commonwealth Ct. 585, 455 A.2d 747 (1983). Because there is no indication that the Board capriciously disregarded competent evidence in making its determinations, the facts of this case support the legal conclusion that the work proffered was suitable. The Claimant had been unemployed for approximately 5 ...


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