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BETHLEHEM STEEL CORPORATION v. COMMONWEALTH PENNSYLVANIA (01/25/89)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: January 25, 1989.

BETHLEHEM STEEL CORPORATION, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT

Appeal from the Order of the Unemployment Compensation Board of Review, in the case of In Re: Claim of Carol Ann Krasley, No. B-266072.

COUNSEL

Jason S. Shapiro, McNees, Wallace & Nurick, for petitioner.

Gary L. Kelley, Assistant Counsel, with him, Clifford F. Blaze, Deputy Chief Counsel, for respondent.

Judges Doyle and McGinley, and Senior Judge Kalish, sitting as a panel of three. Opinion by Senior Judge Kalish.

Author: Kalish

[ 123 Pa. Commw. Page 129]

Petitioner, Bethlehem Steel Corporation, seeks review of an order of the Unemployment Compensation Board of Review (Board), which reversed the referee's decision to deny benefits to Carol Ann Krasley, claimant. We affirm.

Claimant was employed by petitioner as an operations clerk for twenty-one years. On August 26, 1987, the petitioner informed claimant that her position as operations clerk was to be abolished, and told her that a test lab clerk in the main lab was available, effective August 31, 1987. The Board found that the claimant refused the offer because the duties as test lab clerk were different from operations clerk.*fn1 Accordingly, the Board found that claimant had cause of a necessitous and compelling nature for terminating her employment pursuant to section 402(b) of the Unemployment Compensation Law (Law),*fn2 and granted benefits.

[ 123 Pa. Commw. Page 130]

Our scope of review is limited to a determination of whether constitutional rights were violated, an error of law was committed, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704; Estate of McGovern v. State Employees' Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986).

Section 402 of the Law, 43 P.S. § 802, provides, "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 any employer. . . ."

One who becomes unemployed by a voluntary termination of his or her work, bears the burden of proving that such termination was with cause of a necessitous and compelling nature. Borman v. Unemployment Compensation Board of Review, 12 Pa. Commonwealth Ct. 241, 316 A.2d 679 (1974). If claimants are "forced to accept employment which is not 'suitable', as defined in the Unemployment Compensation Law, a door is closed on them to locate and accept employment commensurate with their training, experience and prior earnings." Shay v. Unemployment Compensation Board of Review, 424 Pa. 287, 290, 227 A.2d 174, 176 (1967). Our Supreme Court has discussed the concept of "suitable work," noting that "in determining suitability of work, prior training and experience are inevitable touchstones of deliberation." Id. at 290, 227 A.2d 176.

The Board found that claimant's prior training and experience were comprised mainly of clerical and stenographic duties, and a comparison of the operations clerk duties with that of the test lab clerk indicates their disparity. The Board concluded that claimant had no experience in many of the duties required as a test lab clerk, and therefore, claimant had cause of a necessitous and compelling nature for terminating her employment.

[ 123 Pa. Commw. Page 131]

We find substantial evidence in the record to support the Board's findings.

Accordingly, we affirm.

Order

Now, January 25, 1989, the order of the Unemployment Compensation Board of Review, Decision No. B-266072, is affirmed.

Disposition

Affirmed.


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