Franklin & Lindsey, Inc. v. Commonwealth

Opinion by Judge Mencer, Franklin & Lindsey, Inc. (employer) appeals to this Court from an order of the Unemployment Compensation Board of Review (Board), which reversed a referee’s denial of compensation to Karen Jesiolowski (claimant). The claimant was last employed as a draftspersonsurveyor, having commenced her employment in April of 1975 and working only as a draftsperson until August of 1975 when she began to do field survey work. Beginning in March of 1976, she was required by the employer, against her wishes, to perform secretarial duties, and on May 21, 1976, she was laid off because [61] of a lack of work to be done. Soon thereafter she was again offered the same work by this same employer, bnt she refused it as not commensurate with her training and experience. Upon the claimant’s application for compensation, the Bureau of Employment Security issued a determination denying benefits pursuant to Section 402(b) (1) of the Unemployment Compensation Law (Law), Act of December 5,1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(b) (1), which disallows benefits when “unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature. ...” The claimant appealed, and the referee affirmed the Bureau’s determination under Section 402(a) of the Law, 43 P.S. §802(a), which denies benefits to an employee who refuses to accept suitable work when it is offered. The claimant then appealed to the Board, which reversed the referee arid granted benefits. Prom this adjudication the employer now appeals. In unemployment compensation cases, our scope of review is limited to questions of laAV and, absent fraud, to a determination of whether or not the necessary findings of fact are supported by the evidence. Section 510 of the Law, 43 P.S. §830. The employer objects here to the Board’s finding that the claimant was offered “purely secretarial work” and argues that the finding is not supported by the evidence and that, on the contrary, the employment offered was suitable. It is true that there was conflict in the testimony here regarding the type of employment offered to the claimant, but there was evidence, in the form of the claimant’s direct testimony and corroborating hearsay evidence, on which the Board’s decision could well have been based. The Board accepted the claimant’s testimony as to the nature of the work offered, and that determination is binding on us, for questions of [62] credibility and evidentiary weight are questions of fact for the Board to resolve. Ravenell v. Unemployment Compensation Board of Review, 32 Pa. Commonwealth Ct. 138, 377 A.2d 1297 (1977). Thus, the only real issue here is whether or not secretarial work was unsuitable for a person with the claimant’s experience and training as a draftsperson-surveyor. The Board decided that, under the criteria as set out in Section 4(t) of the Law, 43 P.S. §753(t), defining ‘ ‘ suitable work, ’n the employment proffered by the employer to this claimant could not be deemed suitable. “Suitable work,1 as defined in Section 4(t), means all work which the employee is capable of performing, and it seems evident here that the nature of the work offered the claimant2 was ‘ ‘ suitable ’ ’ as that term is defined. The claimant had previously done secretarial work for the petitioner, as well as a previous employer, and certainly did not contend that she is not capable of performing such work. See Unemployment Compensation Board of Review v. Lowell, 24 Pa. Commonwealth Ct. 309, 355 A.2d 616 (1976). “Good cause” for refusing suitable work must be “ ‘real not imaginary, substantial not trifling, reasonable not whimsical.’ ” Barclay White Co. v. Unemployment Compensation Board of Review, 356 Pa. 43, 48, 50 A.2d 336, 340 (1947), and a claimant’s reasons must be of the magnitude that compels his or her decision to refuse the offer. The record here simply fails to show evidence that is sufficient to meet the test of “good cause.” [63] Accordingly, we enter the following Order And Now, this 23rd day of January, 1979, the order of the Unemployment Compensation Board of Review in the above captioned case is hereby reversed. Footnotes [1] Under this section, suitable work is defined as that which the employee is capable of performing. The department, however, is directed to consider a number of other factors including risk to health, safety, physical fitness, and prior training and experience. [2] Claimant had worked for petitioner as a draftsperson-surveyor and for a portion of her employment performed secretarial duties. She was offered secretarial work which she refused.