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COMMONWEALTH PENNSYLVANIA v. COMMONWEALTH PENNSYLVANIA (01/08/88)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: January 8, 1988.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF LABOR AND INDUSTRY, OFFICE OF EMPLOYMENT SECURITY, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT. ALLEN W. FRITCHMAN, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT

Appeals from the Orders of the Unemployment Compensation Board of Review, in cases of In Re: Claims of Allen W. Fritchman, No. B-243706-B and No. B-243707-B, dated January 29, 1986.

COUNSEL

Debra L. Mazen, Assistant Counsel, with her, Margaret D. Blough, Deputy Chief Counsel, for petitioner, Department of Labor and Industry, Office of Employment Security.

William H. Agnew, for petitioner, Allen W. Fritchman.

Jonathan Zorach, Assistant Counsel, with him, Clifford F. Blaze, Deputy Chief Counsel, for respondent.

Judges MacPhail and Colins, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 112 Pa. Commw. Page 396]

Allen W. Fritchman (Claimant) petitions for our review of an order of the Unemployment Compensation Board of Review (Board) which affirmed a referee's order denying Claimant benefits and assessing a non-fault overpayment. The Office of Employment Security (OES) has also petitioned for our review of the Board's decision insofar as it affirmed a referee's decision to modify OES' assessment of a fault overpayment to a non-fault overpayment. These appeals were consolidated, sua sponte, for review before this Court. For the reasons which follow, we affirm the Board's determination insofar as it denies Claimant benefits for compensable weeks ending November 12, 1983 through September 8, 1984, and we reverse the Board's order insofar as it imposes a non-fault overpayment and reinstate OES' determination of a fault overpayment.

Our review of the record reveals that Claimant had been employed by Taylor-Wharton for approximately 22 years performing skilled and semi-skilled work. On August 31, 1983, Claimant went on strike from Taylor-Wharton and since he was not receiving strike benefits, Claimant took a full-time, temporary, unskilled position with Peoples Coal in mid-September, 1983. Claimant's position at Peoples Coal was understood by both Claimant and that employer to be temporary, lasting only until the strike at Taylor-Wharton ended.*fn1 On November

[ 112 Pa. Commw. Page 3972]

, 1983, however, Claimant learned that Taylor-Wharton was to close permanently and that he might be eligible for unemployment benefits. The next day, Claimant informed his temporary employer, Peoples Coal, that Taylor-Wharton was closing and that he, therefore, found it necessary to quit Peoples Coal to look for work commensurate with his position with Taylor-Wharton.*fn2

On November 4, 1983, Claimant applied for and received unemployment compensation benefits indicating on his application for benefits his employment with Taylor-Wharton, but not his most recent employment with Peoples Coal.*fn3 After receiving compensation for approximately 44 weeks, Claimant obtained employment with a painter which lasted approximately four months and then Claimant again, on January 3, 1985, applied for unemployment benefits. This time, Claimant did indicate on his application for benefits his work for Peoples Coal and he again received benefits. Upon learning of Claimant's employment with Peoples Coal, however, OES determined that Claimant was not eligible for benefits for the 44 week period during which he had already received benefits, specifically, claim weeks ending November 12, 1983 through September 8, 1984 because he had voluntarily quit his position with Peoples Coal without good cause.*fn4 OES also assessed a

[ 112 Pa. Commw. Page 398]

    fault overpayment.*fn5 On appeal, a referee affirmed OES' decision in part but modified OES' determination of a fault overpayment to a non-fault overpayment. The Board affirmed the referee's decision as modified. The present appeals followed.

Claimant argues here that he is entitled to benefits for the claim weeks in question since his voluntary quit was with cause of a necessitous and compelling nature in that the position with Peoples Coal was not suitable employment. Claimant also argues that even if this Court determines that his voluntary quit was without good cause, he is still entitled to partial benefits and that he cannot now be assessed a fault overpayment since the only evidence of record on the issue of Claimant's state of mind indicates that he was free of fault.

OES argues that some critical factual findings of the Board lack supporting evidence and that without those factual findings a fault overpayment is mandatory since Claimant's culpable state of mind is apparent.

The Board argues that Claimant is disqualified from receiving benefits for the claim weeks in question due to his voluntary quit without cause of a necessitous and compelling nature and the Board agrees with OES that some of its critical factual findings are not supported by any evidence in the record and that therefore, Claimant's non-fault overpayment should be changed to a fault overpayment.

Keeping in mind our limited scope of review,*fn6 we shall address first the arguments regarding Claimant's

[ 112 Pa. Commw. Page 399]

    eligibility for benefits for the claim weeks in question. Section 402(b) of the Law, 43 P.S. ยง 802(b) provides that an employee shall be ineligible for compensation for any week in which his unemployment is due to his voluntarily leaving work without cause of a necessitous and compelling nature. Claimant argues that since the position at Peoples Coal was "unsuitable" as a permanent position due to its comparatively low wages and lack of benefits when compared with his position at Taylor-Wharton, his voluntary quit was with good cause.

This Court has held, however, that one's initial acceptance of a job offer creates a presumption of the suitability of the job. Fontana v. Unemployment Compensation Board of Review, 71 Pa. Commonwealth Ct. 274, 454 A.2d 678 (1983). To remain eligible for benefits after voluntarily terminating such employment, one must show deception as to the conditions of work or a substantial unilateral change in the employment agreement. Id. Claimant here has shown neither.*fn7 Accordingly, benefits must be denied.

Claimant argues that even if this Court determines that his voluntary quit was without good cause, he is

[ 112 Pa. Commw. Page 400]

    still entitled to partial benefits under the " Fabric principle".*fn8 See Unemployment Compensation Board of Review v. Fabric, 24 Pa. Commonwealth Ct. 238, 354 A.2d 905 (1976). We note, however, that the " Fabric principle" is only applicable to situations involving part-time employment. Fabric; see also Gray v. Unemployment Compensation Board of Review, 88 Pa. Commonwealth Ct. 284, 489 A.2d 315 (1985). In the instant case, Claimant's employment with Peoples Coal was full-time and accordingly, the Fabric principle is not applicable and Claimant's ineligibility for benefits is total.

We turn now to OES' argument that Claimant should be assessed a fault rather than a non-fault overpayment. OES argues that there is no evidence of record which supports the Board's findings of fact numbers 7 and 8 which indicate in substance that Claimant opened a claim for benefits at the time of the strike on August 31, 1983, and that although Claimant did not inform OES of his most recent employment with Peoples Coal, OES knew of that employment and adjusted his benefits accordingly. Claimant argues that even if there is no evidence of record which supports findings 7 and 8, there is still no evidence of record that Claimant was at fault in receiving an overpayment.

Our review of the record reveals that there is, in fact no evidence which supports the Board's findings of fact numbers 7 and 8. Further, we believe that without these findings, the other findings made by the Board, specifically findings 2, 5 and 6, would support the conclusion that Claimant received benefits he was not entitled

[ 112 Pa. Commw. Page 401]

    to through his own fault.*fn9 See Amspacher v. Unemployment Compensation Board of Review, 84 Pa. Commonwealth Ct. 447, 479 A.2d 688 (1984).

Inasmuch as both the Board and OES now agree that Claimant should be assessed a fault, rather than non-fault overpayment, and since we have determined that there are factual findings supported by substantial evidence which would support a finding of a fault overpayment, we shall reverse the Board's order insofar as it imposes a non-fault overpayment and reinstate OES' determination of a fault overpayment.

Order

The order of the Unemployment Compensation Board of Review in the above-captioned cases is affirmed insofar as it disqualifies Claimant from receiving benefits for claim weeks ending November 12, 1983 through September 8, 1984, we reverse the Board's order insofar as it imposes a non-fault overpayment and we reinstate OES' determination of a fault overpayment.

Disposition

Affirmed in part and reversed in part. Fault overpayment reinstated.


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