Appeal from the Order of the Unemployment Compensation Board of Review, in the case of Laura M. Teitell, No. B-256443.
Richard K. Teitell, for petitioner.
Patricia Krise Bilzi, Assistant Counsel, with her, Clifford F. Blaze, Deputy Chief Counsel, for respondent.
Judges Doyle and Barry, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Barry. Concurring and Dissenting Opinion by Judge Doyle.
[ 118 Pa. Commw. Page 408]
Laura M. Teitell, (claimant) appeals from an order of the Unemployment Compensation Board of Review which affirmed a decision of a referee that claimant had been ineligible for unemployment compensation benefits under Section 402(b)(1) of the Unemployment Compensation Law*fn1 (Law), 43 P.S. § 802(b)(1) (voluntary termination without necessitous and compelling reason) at the time she applied for those benefits. Claimant also was assessed a fault overpayment.
Claimant was last employed by the Fox Chase Cancer Clinic (Fox) as Chief Occupational Therapist in the Rehabilitation Medicine Department. Her last day of work for Fox was August 1, 1986. She was aware that Moss Rehabilitation Center (Moss) would be assuming the responsibility for supplying all occupational and physical therapy services at Fox, effective August 4, 1986. Claimant was offered employment with Moss effective August 4, 1986 as an occupational therapist at the rate of $26,500.00 a year, the same salary she had
[ 118 Pa. Commw. Page 409]
been paid prior to her last day of work for Fox, but with an altered medical benefits coverage plan. She declined to accept Moss's offer in order to pursue employment elsewhere as an independent contractor and because she was dissatisfied with the medical benefits coverage offered by Moss.
Claimant applied for benefits with the Office of Employment Security (OES) on August 3, 1986. She was thereafter granted benefits for the benefit weeks ending August 16, 1986 through October 4, 1986. Claimant failed to properly inform the OES at the time she filed her application for these benefits of the offer that had been made to her by Moss. On November 19, 1986, the OES determined that claimant had been ineligible for benefits based on its determination that she had voluntarily terminated her employment without necessitous and compelling reasons; she was assessed a fault overpayment. OES found that claimant had received benefits to which she was not entitled as a result of her failure to properly inform the OES at the time she filed her application for benefits that she had been offered employment with Moss.
Claimant filed a timely appeal from these determinations. After holding a hearing on January 5, 1987, the referee, on January 8, 1987, affirmed the OES determinations. Claimant appealed to the Board, which, on March 10, 1987, affirmed the referee's decision. This appeal followed.
Our scope of review in this matter is limited to determining whether necessary findings of fact are supported by substantial evidence, whether an error of law has been committed and whether any of the claimant's constitutional rights have been violated. Estate of McGovern v. State Employees' Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986).
[ 118 Pa. Commw. Page 410]
Claimant first argues that the referee and the Board erred in applying Section 402(b)(1) of the Law, and that, if any section of the Law possibly controls, it is Section 402(a), 43 P.S. § 802(a). We agree with this portion of claimant's argument.
Section 402(a) states in pertinent part:
An employee shall be ineligible for compensation for any week --
(a) in which his unemployment is due to failure, without good cause, . . . to accept suitable work when offered to him by the employment officer or by any employer. . . . Provided, that such employer notifies the employment office of such offer within seven (7) days after making thereof; . . .
In Hammerstone v. Unemployment Compensation Board of Review, 32 Pa. Commonwealth Ct. 256, 378 A.2d 1040 (1977), claimant worked for Tele Sales, Inc. He was laid off from that job. At about the same time he was laid off, the president of Tele Sales, who was also the president of Valfor Enterprises, Ltd., offered claimant a job with Valfor, which claimant did not accept. The job offered involved similar duties, working conditions, pay and fringe benefits. This court held that claimant could not be held ineligible for benefits under Section 402(b)(1) of the Law. In doing so, we rejected the board's argument that the rationale in Unemployment Compensation Board of Review v. Fields, 24 Pa. Commonwealth Ct. 347, 355 A.2d 836 (1976) and Dinges v. Unemployment Compensation Board of Review, 28 Pa. Commonwealth Ct. 306, 369 A.2d 898 (1977) applied because, in those cases, claimant ...