Lattanzio v. Unemployment Compensation Board of Review ( 1975 )

OPINION OF THE COURT

NIX, Justice.

This is an appeal upon grant of a petition for allocatur, from an order of the Commonwealth Court of Pennsylvania, 10 Commonwealth Court 160, 309 A.2d 459 (1973), which found appellant, Larry A. Lattanzio, ineligible for receipt of unemployment compensation benefits under the Unemployment Compensation Act, Act of December 5, 1936, P.L. [1937] 2897, as amended, 43 P.S. § 751 et seq. (1964). There is no serious dispute as to the facts of this case. Mr. Lattanzio was employed by Wells Fargo Alarms Services in Reading, Pennsylvania, as a crew leader installing fire and burglar alarms. On January 2, 1971, the appellant was laid off due to lack of work. He had been employed for this company since February 6, 1969, and it was conceded that during the period of his employment he was an excellent employee and that the company had no complaints as to the manner in which he discharged his duties. On April 12, 1971, he received notice that he was to return to work at 8:00 A.M. on April 14, 1971. However, on April 13, 1971, he met with the branch manager of the company who informed him that he would be required to obtain a hair cut and to shave his beard and sideburns to conform with “acceptable standards in the community.” The appellant expressed his refusal to comply with this directive and was informed that he would not be rehired.

Subsequently, appellant filed an application for unemployment compensation benefits and was notified by the Bureau that his application was denied pursuant to Section 402(a) of the Unemployment Compensation Act, supra, 43 P.S. § 802(a). The Bureau’s ruling was predicated upon a finding that appellant had failed to accept an offer of suitable employment without good cause. Following a full hearing on June 1, 1971, the referee issued a decision affirming the ruling of the Bureau and, following appellant’s appeal to the Unemployment Compensation Board of Review which sustained the action of the referee, appellant sought relief from the Commonwealth Court. By order and opinion dated September 19, 1973, the Commonwealth Court dismissed the appeal and we subsequently granted allocatur. This appeal followed.

The thrust of appellant’s contention is that Section 402(a) as applied to the facts of this case constitutes a violation of his constitutional rights under the First and Fourteenth Amendments of the Federal Constitution. It has, however, been the basic law in this jurisdiction that statutes are presumed constitutional, Glancey v. Casey, 447 Pa. 77, 88, 288 A.2d 812 (1972); Commonwealth v. Daniel, 430 Pa. 642, 650, 243 A.2d 400 (1968); Daly v. Hempville, 411 Pa. 263, 191 A.2d 835 (1963), and we will not reach constitutional issues where the matter can be decided on non-constitutional grounds. Binder v. Triangle Publications, Inc. 442 Pa. 319, 323, 275 A.2d 53 (1971); Altieri v. Allentown Officers & Employees Retirement Board, 368 Pa. 176, 180, 81 A.2d 884 (1951); Hostetter v. Bureau of Traffic Safety, 10 Cmwlth. 228, 233, 309 A.2d 600 (1973).

Section 402(a) provides:

“An employee shall be ineligible for compensation for any week—

(a) In which his unemployment is due to failure, without good cause, either to apply for suitable work at such time and in such manner as a department may prescribe, or to accept suitable work when offered to him by the employment office or by any employer. .” (Emphasis added).

Here no question as to the suitability of the proffered employment is raised, since it was an offer to return to his former position at the same rate of pay. The controversy thus necessarily turns on the question as to whether there was “good cause” for the refusal to accept the offer of reemployment under the conditions proposed. While the Act specifically defines the phrase “suitable work” it unfortunately fails to provide a definition of the term “good cause.” Additionally, our case law has recognized that “good cause” and “suitable work” represent distinct concepts and must be considered separately. Barclay White Company v. Unemployment Compensation Board of Review, 356 Pa. 43, 50 A.2d 336 (1947), cert. denied, 332 U.S. 761, 68 S.Ct. 63, 92 L.Ed. 347; Sweeney v. Unemployment Compensation Board of Review, 177 Pa.Super. 243, 110 A.2d 843 (1955); Dower v. Unemployment Compensation Board of Review, 179 Pa.Super. 201, 115 A.2d 878 (1955). Therefore the statutory definition of “suitable work” is of little help in ascertaining the legislative intent in its use of the term “good cause.”

In attempting to arrive at a definition for this term, it is helpful to be mindful of the guiding principle announced by this Court in Wedner v. Unemployment Compensation Board of Review, 449 Pa. 460, 467, 296 A.2d 792, 796 (1972):

“ ‘Finally, it is to be remembered that the Unemployment Compensation Law is a remedial statute, and, excepting the sections imposing taxes, its provisions mut be liberally and broadly construed so that its objectives [insuring that employees who become unemployed through no fault of their own are provided with some semblance of economic security] may be completely achieved.’ Blum Unemployment Compensation Case, 163 Pa.Super. 271, 278, 60 A.2d 568, 571 (1948).”

The appellate decisions in this jurisdiction have offered various definitions for this term. “Good cause” has been defined as “[s]ome necessitous and compelling reason”, Wolovich Unemployment Compensation Case, 169 Pa.Super. 356, 359, 82 A.2d 64, 65 (1951); Suska Unemployment Compensation Case, 166 Pa.Super. 293, 296, 70 A.2d 397, 399 (1950). On occasion “good cause” has been treated as synonymous with “good faith” and characterized as “not only the merely negative virtue of freedom from fraud but requires positive conduct which is consistent with a genuine desire to work and be self-supporting”. Maribello Unemployment Compensation Case, 200 Pa.Super. 330, 332, 188 A.2d 861, 862 (1963); Nygren Employment Compensation Case, 184 Pa.Super. 138, 132 A.2d 727 (1957). The Commonwealth Court most recently in the case of Trella v. Unemployment Compensation Board of Review, 10 Cmwlth. 305, 307, 309 A.2d 742, 743 (1973), construed the term to require a “substantial and reasonable ground” for refusing the proffered employment. See also Reed Unemployment Compensation Case, 182 Pa.Super. 428, 430, 128 A.2d 112 (1956).

Probably the most informative formulation of this concept is provided by the Superior Court in Bentz Unemployment Compensation Case, 190 Pa.Super. 582, 155 A.2d 461 (1959). There the Court stated:

“The reasons for refusal of offered work must be substantial and reasonable, not arbitrary, whimsical, capricious or immaterial. Sweeney Unemployment Compensation Case, supra, 177 Pa.Super. 243, 248, 110 A.2d 843. Good cause for refusing a referral rests on good faith, and good faith, as used in this context, includes positive conduct on the part of the claimant which is consistent with a genuine desire to work and to be self-supporting. Brilhart Unemployment Compensation Case, 159 Pa.Super. 567, 569, 49 A.2d 260.”

Applying the Bentz standard to the present facts, we are satisfied that there was “good cause” for the instant claimant to reject the proffered employment under the conditions imposed. From a review of the factual situation by the courts in this area, it is apparent that this term has been employed to justify the refusal of benefits where it appears in the record either that the claimant is malingering or has unreasonably rejected the opportunity of employment. Illustrative of this situation is the Court’s opinion in Misinkaitis Unemployment Compensation Case, 169 Pa.Super. 124, 82 A.2d 74 (1951). In that decision the Court observed:

“ ‘We have recognized that, where an employee is referred to a position which pays a wage materially lower than the wage last earned, the employee may be justified in refusing such a referral while seeking employment at a rate of pay more commensurate with his previously demonstrated earning capacity. The right to decline work for this reason is not, however, without qualification; the employee is entitled only to a reasonable opportunity to obtain work at a satisfactory wage rate.’ Haug Unemployment Compensation Case, 162 Pa.Superior Ct. 1, 4, 56 A.2d 396, 397. The reason for permitting a claimant to refuse proffered work paying wages materially lower than his former employment is to afford him a reasonable opportunity to seek employment at a rate of pay more commensurate with his demonstrated earning capacity. To grant such opportunity to a claimant such as the present one who is admittedly merely marking time for several weeks until recalled to his former employment is to extend ‘an invitation to a compensated rest”. (Emphasis added) Id. at 128, 82 A.2d at 76.¹

The instant appellant has at all times been willing to accept the employment offered and there is nothing on the record to suggest any reluctance on his part to properly perform the required duties. The controversy here centers around the personal right of an individual to determine his personal appearance. Crucial to this determination is the fact that although the request was made to secure conformity with allegedly acceptable community standards, there is no evidence that the requested alteration in appellant’s appearance was in any way essential to the proper performance of the duties to which he would have been assigned. The only justification given by appellee was the vague assertion that appellant’s “modish” appearance might reflect unfavorably upon his employer.

Additionally, there is no allegation that appellant was untidy, slovenly, unkempt, unclean or in any way offensive to reasonably acceptable health standards. The gist of the objection under consideration was that he chose a style of appearance which has been in recent years accepted by many segments of our society. This case, therefore, presents the narrow issue as to whether an employer’s expression of a preference of one accepted mode of dress or appearance over another equally accepted style, where no relationship is established between the preference and performance of the duties involved, should justify the denial of benefits for failure to comply.

Under the present state of our law we have permitted private employers wide latitude in expressing their personal bias and sensitivities in their hiring practices.² However, this allowance of latitude to an employer in the selection of his employee does not justify a restrictive interpretation of a legislative remedial enactment designed specifically to help those who are unemployed.

We are constrained to conclude that under the facts of this case, appellant’s refusal was with “good cause” and, therefore, benefits under the Unemployment Compensation Act were improperly denied. Therefore, the order of the Commonwealth Court affirming the action of the Unemployment Board of Review is reversed and the matter remanded for further proceedings consistent herewith.

POMEROY, J., filed a dissenting opinion in which Mr. Chief Justice JONES joins.

1 . Comparable factual situations can be found in Trella v. Unemployment Compensation Board of Review, supra; Kanouse v. Unemployment Compensation Board of Review, 9 Cmwlth. 188, 305 A.2d 782 (1973); Maribello Unemployment Compensation Case, supra; Reed Unemployment Compensation Case, supra; Wolovich Unemployment Compensation Case, supra.

2 . This right however is not unlimited. See the Act of October 27, 1955, P.L. 744, § 5; 1956, March 28, P.L. (1955), 1354, § 1; 1961, February 28, P.L. 47, § 2, as amended 1966, January 24, P.L. (1965), 1525, § 2; 1967, November 27, P.L. 622, § 3; 1969, July 9, P.L. 133, § 2, 43 P.S. § 955 (Supp.1974-75).