# Lattanzio v. Unemployment Compensation Board of Review

> Supreme Court of Pennsylvania · March 18, 1975 · 461 Pa. 392

URL: https://www.frixlaw.com/law-library/cases/9747080

## Case

- **Full name:** Larry A. LATTANZIO, Appellant, v. UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, Commonwealth of Pennsylvania
- **Court:** Supreme Court of Pennsylvania
- **Decided:** March 18, 1975
- **Citations:** 461 Pa. 392; 336 A.2d 595; 88 A.L.R. 3d 138; 1975 Pa. LEXIS 783
- **Precedential status:** Published
- **Opinion:** Dissent by Pomeroy
- **Judges:** Jones, Eagen, O'Brien, Roberts, Pomeroy, Nix, Manderino
- **Cited by:** 41 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9747080

## How later opinions describe it (automated extraction)

- recognizing that “good cause”has been defined as a “necessitous and compelling reason”

## Opinion text

POMEROY, Justice
(dissenting).
Section 402 of the Unemployment Compensation Act provides in part that “[a]n employee shall be ineligible for compensation for any week ... in which his unemployment is due to failure, without good cause . to accept suitable work when offered to him by the employment office of or by any employer . . . ’b 1 *401 The Court today decides that appellant was improperly denied unemployment compensation benefits because “there was ‘good cause’ for [him] to reject the proffered employment under the conditions imposed”. Opinion of the Court, ante at 598. I respectfully dissent.
Preliminarily, I must note that the Court has considered and decided an issue which appellant has not raised. In his appeal to the Commonwealth Court, in his petition for allowance of appeal to this Court, and in his appeal to this Court, appellant has presented but one question: whether the denial of unemployment compensation benefits violated his right to freedom of speech guaranteed by the First Amendment to the United States Constitution. The Commonwealth Court answered that question in the negative. At no time during the appellate process has appellant challenged the referee’s finding that he refused suitable work without good cause. Although the Court is undoubtedly correct in stating that we should not reach constitutional questions when a case can be decided on other grounds, Opinion of the Court, ante at 597, that is not to say that an appellate court may search for such grounds beyond the issues presented to it in order to avoid the constitutional question. Regard for proper appellate practice indicates that it should not. 2
*402 Since, however, the Court has decided that appellant had “good cause” to refuse re-employment with Wells Fargo Alarm Services, Inc., I deem it appropriate to express my disagreement with the Court’s resolution of the issue.
The Unemployment Compensation Law does not define “good cause”, and this Court has said that its meaning “must be determined in each case from the facts of that case”. Barclay White Co. v. Unemployment Compensation Board, 356 Pa. 43, 48 , 50 A.2d 336, 340 (1947). In each case it is important that “good cause” be “so interpreted that the fundamental purpose of the legislation shall not be destroyed”. Id. The “fundamental purpose” of the Unemployment Compensation Law is stated in its “declaration of public policy” as follows:
“Economic insecurity due to unemployment is a serious menace to the health, morals, and welfare of the peoplé of the Commonwealth. Involuntary unemployment and its resulting burden of indigency falls with crushing force upon the unemployed worker, and ultimately upon the Commonwealth and its political subdivisions in the form of poor relief assistance. Security against unemployment and the spread of indigency can *403 best be provided by the systematic setting aside of financial reserves to be used as compensation for loss of wages by employes during periods when they become unemployed through no fault of their own. The principle of the accumulation of financial reserves, the sharing of risks, and the payment of compensation with respect to unemployment meets the need of protection against the hazards of unemployment and indigency. The Legislature, therefore, declares that in its considered judgment the public good and the general welfare of the citizens of this Commonwealth require the exercise of the police powers of the Commonwealth in the enactment of this act for the compulsory setting aside of unemployment reserves to be used for the benefit of persons unemployed through no fault of their own.” (Emphasis added.) 3
Implicit in the use of the phrases “no fault of their own” and “involuntary” unemployment are standards of good faith. 4 and reasonableness. 5 Thus, only those unemployed individuals who act in good faith and who make reasonable efforts to become employed are entitled to benefits under the Act. As this Court said in Barclay White Co. v. Unemployment Compensation Board, supra at 48, 50 A.2d at 340 :
“We are convinced that ‘good cause’ was intended to cover reasons which are personal to the employe and extraneous to the employment if they are, as said by *404 the learned Superior Court in Sturdevant Unemployment Comp. Case, 158 Pa.Super. 548 , 45 A.2d 898, 903 , ‘real not imaginary, substantial not trifling, reasonable not whimsical circumstances [which] compel the decision to leave employment’ or to refuse suitable work.”
In cases involving the question whether an employee had “good cause” to refuse work, the claimant bears the burden of proving that he acted reasonably and in good faith and that his reasons for refusing employment were substantial. Sledzianowski Unemployment Compensation Case, 168 Pa.Super. 37 , 76 A.2d 666 (1950); see Rabinowitz v. Unemployment Compensation Board of Review, -Pa.Cmwlth.-, 324 A.2d 825 (1974); Kernisky v. Unemployment Compensation Board of Review, 10 Pa.Cmwlth. 199 , 309 A.2d 181 (1973). On appeal the evidence must be viewed in a light most favorable to the party who has prevailed below. See Rabinowitz v. Unemployment Compensation Board of Review, supra; Hinkle v. Unemployment Compensation Board of Review, 9 Pa.Cmwlth. 512 , 308 A.2d 173 (1973). So viewed, it seems manifest to me that the referee’s finding that “good cause” had not been made out must be upheld.
The majority asserts that Wells Fargo established “no relationship . . . between the preference [for a particular mode of appearance] and performance of the duties involved”. Opinion of the Court, ante at 599. It thus seems to suggest that the condition attached to the employer’s job offer was unreasonable, and hence that rejection of it was for good cause. I do not agree. Appellant’s job was that of “crew leader”. In that capacity he supervised for his employer the installation of fire and burglar alarms at locations throughout the community. He was responsible for dealing directly with customers of his employer, and he was regularly seen in public wearing a uniform bearing the name of his employer. In light of these circumstances, it was not unreasonable for Wells Fargo to be concerned with appel *405 lant’s appearance and to require that it be such as would not reflect unfavorably upon the company in the minds of large numbers of citizens. As the United States Court of Appeals for the District of Columbia Circuit has recently put it:
“ ‘Perhaps no facet of business life is more important than a company’s place in public estimation. That the image created by its employees dealing with the public when on company assignment affects its relations is so well known that we may take judicial notice of an employer’s proper desire to achieve favorable acceptance. Good grooming regulations reflect a company’s policy in our highly competitive business environment. Reasonable requirements in furtherance of that policy are an aspect of managerial responsibility.’ Fagan v. National Cash Register Co., 157 U.S.App.D.C. 15 , 481 F.2d 1115, 1124-25 (1973).” 6
The question then becomes not, as the majority puts it, “the personal right of an individual to determine his personal appearance”, ante at 599 (a right which is disputed by no one), but whether a job applicant’s unwillingness to make adjustments in his appearance in order to comply with the employer’s reasonable requirement constitutes “good cause” within the meaning of § 402 of the Act. As indicated above, I am satisfied that appellant here has failed to meet his burden that it does. Wells Fargo had maintained its grooming policy for some time, appellant had been aware of it, and had complied with it during his prior employment with the company from February 6, 1969, until January 2, 1971. When asked at the hearing why he would not comply with it when called back to work on April 12, 1971, his only response was a vague assertion that “its discriminatory”. Such a non *406 specific charge, totally unsupported, does not qualify under any of our prior cases as good cause to reject a job offer. While a legitimate indulgence of personal preference in hair grooming, such refusal should not carry with it a right to unemployment compensation benefits at public expense.
Turning but briefly to the sole question which appellant has asked us to decide and which I think cannot be avoided — whether or not his First Amendment rights have been violated — this record may be searched in vain for any indication that appellant intended to convey any “particularized message” by means of his beard, his mustache, or the length of his hair. See Spence v. Washington, 418 U.S. 405 , 94 S.Ct. 2727 , 41 L.Ed.2d 842, 847 (1974). I therefore agree with the Commonwealth Court that the denial to appellant of unemployment compensation benefits in no way penalized his exercise of any constitutionally protected form of expression. See the opinion of the Commonwealth Court, Lattanzio v. Unemployment Compensation Board of Review, 10 Pa.Cmwlth. 160 , 309 A.2d 459 (1973); compare Spence v. Washington, supra, and Tinker v. Des Moines School District, 393 U.S. 503 , 89 S.Ct. 733 , 21 L.Ed.2d 731 (1969).
For the reasons stated, I would affirm the order of the Commonwealth Court.
JONES, C. J., joins in this dissent.
. Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, art. IV, § 402, as amended, 43 P.S. § 802.
. The decision of this appeal on a ground which was raised in neither this Court nor the Commonwealth Court is difficult to square with this Court’s recent pronouncements in declining to consider questions not properly raised and preserved in the courts below. It is of course well-settled that, as a general rule, “issues not raised in the court below are waived and cannot be raised for the first time on appeal to this Court.” Commonwealth v. Agie, 449 Pa. 187, 189 , 296 A.2d 741 (1973). Recently the Court discarded what had been the most notable exception to this general rule, the doctrine of basic and fundamental error. See Commonwealth v. Clair, —— Pa. -, 326 A.2d 272 (1974); Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255 , 322 A.2d 114 (1974). In Commonwealth v. Piper, 458 Pa. 307 , 309 n. 5, 328 A. 2d 845 , 847 n. 5 (1974), the Court, addressing itself to the question of abandonment of issues which were raised below but not on appeal, said, “Failure to pursue an issue on appeal is just as effective a forfeiture as the failure to initially raise the issue”. While I have not always agreed with the extent to which this *402 Court has beén willing to find the “waiver” of issue for appellate review (see my dissenting opinions in Piper, supra at 310 , 328 A.2d at 848 and in Clair, supra at -, 326 A.2d at 274 , and my concurring and dissenting opinion in Dilliplaine, supra at 310 , 328 A.2d at 848 ), I can conceive of no good reason for the Court’s consideration of a question which appellant has never on appeal sought to have answered.
The rule that an appellate court will not consider as grounds for reversal issues not raised and properly preserved below by the appellant is to be distinguished from the rule, founded on considerations of judicial economy, that a decision will be affirmed if it was correct for any reason, even though the reason given by the court below may have been erroneous. Sherwood v. Elgart, 383 Pa. 110 , 117 A.2d 899 (1955). For recent applications of the latter rule see Mazer v. Williams Bros. Co., 461 Pa. 587 , 594 n. 6, 337 A.2d 559 , 562 n. 6 (1975); Gilbert v. Korvette, Inc., 457 Pa. 602 , 604 n. 5, 327 A.2d 94 , 96 n. 5 (1974); Prynn Estate, 455 Pa. 192 , 197 n. 9, 315 A.2d 265 , 267 n. 9 (1973).
. Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, art. I, § 3, 43 P.S. § 752.
. See Lybarger Unemployment Compensation Case, 418 Pa. 471 , 211 A.2d 463 (1965); Bentz Unemployment Compensation Case, 190 Pa.Super. 582 , 155 A.2d 461 (1959).
. In Dawkins Unemployment Compensation Case, 358 Pa. 224 , 56 A.2d 254 (1948), this Court defined good cause as “such a cause as would reasonably motivate in a similar situation the average able bodied and qualified worker to give up his or her employment with its certain wage rewards in order to enter the ranks of the ‘compensated unemployed’ ”. 358 Pa. at 237 , 56 A.2d at 261 .
. See also Southern Pacific Transport Co. v. Doyal, 289 So.2d 882 (La.App.1974); Gladstone v. Catherwood, 36 A.D.2d 204 , 319 N.Y.S. 664 , 666 (1971), aff’d, 30 N.Y.2d 576 , 330 N.Y.S.2d 793 , 281 N.E.2d 842 (1972).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9747080. Public record. Not legal advice.