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COMMONWEALTH PENNSYLVANIA v. COMMONWEALTH PENNSYLVANIA (01/28/88)

decided: January 28, 1988.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF LABOR AND INDUSTRY, OFFICE OF EMPLOYMENT SECURITY, 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 Janice F. Palmer, No. B-245052.

COUNSEL

Debra S. Hannon, Assistant Counsel, with her, Margaret D. Blough, Deputy Chief Counsel, for petitioner.

James K. Bradley, Assistant Counsel, with him, Clifford F. Blaze, Deputy Chief Counsel, for respondent.

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

Author: Narick

[ 113 Pa. Commw. Page 170]

This is an appeal by the Department of Labor and Industry, Office of Employment Security (Department) from a decision of the Unemployment Compensation Board of Review (Board) which determined that Janice Palmer (Claimant) was ineligible for benefits pursuant to Section 403-A(b)(1) of the Unemployment Compensa-to

[ 113 Pa. Commw. Page 171]

Section 403-A(b)(1) of the Unemployment Compensation Law (Act), Act of December 5, 1936, Second Ex. Sess., P.L. 1937 (2897), as amended, 43 P.S. ยง 813(b)(1) but only to the extent that her benefits would have been decreased by the part-time earnings Claimant would have received if she had accepted an offer of suitable part-time employment. For the reasons set forth herein, we affirm.

The factual background of this case can be summarized as follows. Claimant was employed as a physical education teacher at a final rate of pay of $21,200 per year. Claimant separated from her employment due to no fault of her own; however, her employer subsequently offered Claimant a job as a part-time physical education teacher which would require her to work two days per week. The rate of pay would have been two-fifths of her previous salary of $21,200 per year or approximately $8,480 per year. Claimant declined the offer of part-time employment which was identical to her former full-time position except for the fact that it was only for two days per week. After the Claimant's approval by the Department for extended benefits, the employer appealed based on the fact that Claimant had refused a suitable offer of part-time employment. The referee concluded that Claimant was eligible for benefits under the extended benefit program of Section 403-A(b)(1) but only to the extent that the benefits would have been decreased by the part-time earnings she would have received if she had accepted the offer of suitable part-time employment made by her employer. The Board affirmed the referee and the Department appealed to this Court.

The question presented for our review is whether the Board erred in concluding that Claimant was ineligible for benefits but only to the extent that her benefits would have decreased by virtue of the part-time earnings

[ 113 Pa. Commw. Page 172]

    she would have received as a physical education teacher. Our scope of review in unemployment compensation proceedings is limited to whether there has been a constitutional violation or an error of law and whether the findings of fact are supported by substantial evidence. Kirkwood v. Unemployment Compensation Board of Review, 106 Pa. Commonwealth Ct. 92, 525 A.2d 841 (1987).

It is the Department's position that pursuant to Section 403-A(h) of the Act that Claimant is totally disqualified for receiving extended benefits. ...


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