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decided: January 8, 1986.


Appeal from the Orders of the Unemployment Compensation Board of Review in the case of In Re: Claim of Patrick J. Dostick, Jr., Nos. B-223328, B-223329 and B-223330, dated October 17, 1983.


John D. Enck, Rowe, Enck & Keys, for petitioner.

Charles G. Hasson, Acting Deputy Chief Counsel, for respondent.

Ginevera M. Saylor, with her, Thomas K. Wynne, for intervenor/claimant, Patrick Dostick.

President Judge Crumlish, Jr., Judge Colins, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri.

Author: Barbieri

[ 94 Pa. Commw. Page 109]

Heidelberg Township (Township) appeals here the decision and order of the Unemployment Compensation Board of Review (Board) reversing the referee

[ 94 Pa. Commw. Page 110]

    and allowing Claimant Patrick Dostick benefits pursuant to Section 402(a) of the Unemployment Compensation Law (Law).*fn1

Claimant was separated from his employment as a police officer for the Township on March 19, 1983 and in early April, 1983, he met a recruiter for the Pennsylvania National Guard (Guard) and was offered a position with the Guard, referred to as a "slot," at the rank of E-5, or sergeant, under the Civilian Acquired Skills Program. Claimant accepted the offer and attended several weekend drills throughout the summer and subsequently received payment for attending the drills. Soon after accepting the offer of the E-5 slot and taking his oath, Claimant was informed a mistake had been made, that the E-5 slot was unavailable. Claimant was offered an E-4 slot, the rank of corporal. Claimant did not decline the offer, but in September he did not report for basic training at Fort Jackson, South Carolina as directed. Claimant subsequently received an honorable discharge from the Guard.

The unemployment compensation authorities reviewed Claimant's application for benefits pursuant to the provisions of Section 402(a) of the Law. Section 402(a), 43 P.S. § 802(a), provides that any employee who refuses an offer of suitable work without good cause shall be ineligible to receive benefits. Section 402(a) was intended to apply only to unemployed claimants who refuse to accept an offer of suitable work. Employed claimants who refuse to accept an offer of continued employment are deemed to have quit their position and their application for benefits must be reviewed pursuant to Section 402(b) of the Law which denies compensation to a claimant who voluntarily leaves work without cause of a necessitous

[ 94 Pa. Commw. Page 111]

    and compelling nature. See Hospital Service Association v. Unemployment Compensation Board of Review, 83 Pa. Commonwealth Ct. 165, 476 A.2d 516 (1984). We find all the elements of "employment" present in the circumstances of the instant case. Section 4 of the Law, 43 P.S. § 753 provides the following definitions:

(i) 'Employe' means every individual . . . who is performing or has performed services for an employer in an employment subject to this act. . . .

(l)(1) 'Employment' means all personal service performed for remuneration by an individual under any contract of hire, express or implied, written or oral. . . .

Claimant was offered an E-5 slot in the Guard which offer he accepted. He attended several weekend drills for which he received remuneration. Claimant's separation from the Guard when he did not proceed to basic training as directed, must be deemed a voluntary termination reviewable under Section 402(b) of the Law, 43 P.S. § 802(b).*fn2 See Kirk v. Unemployment Compensation Board of Review, 65 Pa. Commonwealth Ct. 545, 442 A.2d 1234 (1982) (attendance of claimant, hired as a cook, at a scheduled orientation for which he was to be paid established an employment relationship within the meaning of the law and his failure to

[ 94 Pa. Commw. Page 112]

    report to work the following Monday was a voluntary quit under Section 402(b)).

The legal standards and the burden of proof are essentially the same under Sections 402(a) and 402(b) of the Law.*fn3 Therefore, instead of remanding for consideration of the facts in this case under Section 402(b), we will proceed and decide the issues presented by applying the legal analysis applicable in Section 402(b) cases.*fn4

The Board's findings in this case indicate that, at the weekend drills which Claimant attended, he learned that the E-5 slot was unavailable due to the unit being overstrength; Claimant was offered the rank of E-4, or corporal, a difference in pay of approximately

[ 94 Pa. Commw. Page 113]

$20 per weekend drill. The Board found that Claimant did not reject the proposal but that from May, 1982 until September, 1982, Claimant continued to express his dissatisfaction with the lower rank. The Board found that he continued to believe throughout those four months that it was possible to get the E-5 rank. On September 19, 1982, Claimant failed to report to Fort Jackson for basic training, was listed as AWOL by the United States Army, and, on October 18, 1982, received his honorable discharge from the Guard.

By voluntarily accepting employment which he subsequently terminates, a Claimant has admitted to the initial suitability of the wages and conditions of employment. This presumption of suitability may be overcome by a claimant's proving a unilateral change in the initial working conditions rendering the position unsuitable. Kistler v. Unemployment Compensation Board of Review, 52 Pa. Commonwealth Ct. 465, 416 A.2d 594 (1980); Mosely v. Unemployment Compensation Board of Review, 15 Pa. Commonwealth Ct. 447, 327 A.2d 199 (1974). An unjustified demotion may render a position unsuitable providing necessitous and compelling cause to quit. See Frankford Hospital v. Unemployment Compensation Board of Review, 66 Pa. Commonwealth Ct. 452, 445 A.2d 256 (1982) in which we affirmed the Board's conclusion that the claimant, demoted after a two-day absence from work, had necessitous compelling cause to resign.

Claimant, in the instant case, accepted an E-5 slot. The availability of an E-4 slot only represented an unjustified demotion constituting cause of a necessitous and compelling nature for Claimant to quit unless, of course, Claimant consented to the lower rank, as the employer asserts. The employer argues that the Board capriciously disregarded the evidence of record when it failed to find, as the referee found, that Claimant could have requested an erroneous discharge but did

[ 94 Pa. Commw. Page 114]

    not make such a request, the inference being that Claimant acquiesced in the new condition of employment and, thus, his resignation was without necessitous and compelling cause. The employer went on to state in its brief, however, that the Board's finding, substituted for the above finding, that Claimant continued to express his dissatisfaction with the lower rank and thought it possible to get the E-5 rank, seemed to be supported by the record. The employer questions, however, whether Claimant reasonably believed he would get the higher rank.

When the party with the burden of proof has prevailed before the Board our scope of review is limited to determining whether necessary findings are supported by substantial evidence and whether an error of law has been committed, Saxton v. Unemployment Compensation Board of Review, 71 Pa. Commonwealth Ct. 636, 455 A.2d 765 (1983). We have reviewed the record and determine that the Board's finding that Claimant continued to believe, even after being informed that an E-5 slot was unavailable until the time came to leave for basic training, that it was possible to obtain the E-5 rank, is supported by the substantial evidence of record.*fn5 This being so, a finding regarding

[ 94 Pa. Commw. Page 115]

    the availability of an erroneous discharge was unnecessary; for if Claimant continued to believe an E-5 slot might be available there can be no inference that Claimant acquiesced in an E-4 slot.

[ 94 Pa. Commw. Page 116]

Thus, Claimant had compelling cause to quit the Guard, and we will affirm the Board's orders.*fn6


And Now, this 8th day of January, 1986, the orders of the Unemployment Compensation Board of Review, Nos. 223328, 223329, and 223330, dated October 17, 1983, are hereby affirmed.



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