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HEIDELBERG TOWNSHIP v. COMMONWEALTH PENNSYLVANIA (01/08/86)

decided: January 8, 1986.

HEIDELBERG TOWNSHIP, LEBANON COUNTY, PENNSYLVANIA, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



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.

COUNSEL

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. ...


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