SANFORD E. MALONE, JR., APPELLANT-APPELLEE,

vs.

BOARD OF REVIEW, OHIO BUREAU OF EMPLOYMENT SERVICES, ET.

AL., APPELLEES-APPELLEES, and ALBERT G. GILES,

ADMINISTRATOR, OHIO  BUREAU OF EMPLOYMENT

SERVICES, APPELLEE-APPELLANT

No. 9-79-25
COURT OF APPEALS OF OHIO, THIRD APPELLATE DISTRICT, MARION COUNTY
Slip Opinion
June 20, 1980

APPEAL: Court of Appeals for Marion County

 COUNSEL

 

Mr. William J. Brown, Attorney General, Mr. Raymond A. Stegmeier, Assistant Attorney General, for Appellee-Appellant
Messrs. Rogers & Rogers, Mr. James W. Rogers, of Counsel, for Appellant-Appellee

 JUDGES

 

GUERNSEY, P.J., COLE and MILLER, JJ. concur.

 OPINION

 

 

 
MEMORANDUM OPINION

 

PER CURIAM. Sanford E. Malone, Jr., the appellee in this Court, filed an application for determination of unemployment compensation benefit rights on August 16, 1976, with respect to a benefit year beginning August 15, 1976. He filed a first claim for benefits with respect to the week ending August 21, 1976.

 

Malone had been employed by the Great Lakes Carbon Corp. from September 5, 1972 to July 17, 1976, and quit his employment to accept a position at increased wages with Marion Power Shovel, Inc., his job there to begin on July 19, 1976. The starting date was then postponed to July 26, 1976, because of storm damage occurring to the roof of the plant where he was to work. He worked at his new employment from July 26, 1976, to August 13, 1976, when he was discharged because his new employer believed him not physically able to perform the duties of his position.

 

Malone was denied unemployment compensation through the administrative process, the referee finding that his quit was without just cause> under R.C. 4141.29(D)(2)(a), with R.C. 4141.291 not being applicable because he did not begin his new employment within seven days, and that though his discharge from Marion Power Shoevel was also without just cause, he had not worked there long enough to remove the suspension of benefit rights arising from his separation from Great Lakes Carbon without just cause. The Board of Review disallowing further appeal, Malone appealed to the Court of Common Pleas of Marion County which found his quit was with just cause and entered judgment finding the decision of the Board of Review unlawful, unreasonable and against the manifest weight of the evidence and reversed same.

 

It is from this latter decision that the Administrator of the Ohio Bureau of Employment Services appeals to this Court and assigns error of the court of common pleas in reversing the decision of the board of review as unreasonable, unlawful and against the manifest weight of the evidence. The appellee has not filed a brief and, accordingly, was denied oral argument.

 

The thrust of the decision of the common pleas court appears in its adoption of the rationale of Layton v. BUC, 7 Ohio Misc. 84 and in its written findings as follows:

 

"The rule that the claimant's delay in commencing work from July 19, 1976 disqualified him, when the delay was occasioned by an Act of God and through no fault of the claimant cannot be reconciled with the intent of the Legislature and would be a harsh rule and contrary to the liberal intent and purpose of the Unemployment Compensation Act."

 

The appellant, instead, relies on the cases of Hippert v. Board of Review, Stark County Court of Appeals Case No. 4771, decided Feb. 15, 1978; Nagle v. Bd. of Review, Mahoning County Court of Appeals Case No. 78 C.A. 120, decided January 4, 1979; and Cooper v. Ohio Bureau of Employment Services, Summit County Court of Appeals Case No. 9063, decided February 14, 1979; as well as on the conclusion of the Sixth District Court of Appeals in the case of Hauser v. Decko Products, Inc., Erie County Court of Appeals Case No. 42193, decided October 20, 1978, that the Layton case, supra, was no longer "controlling" on the issue because of the subsequent enactment of amended R.C. 4141.291.

 

We find the rationale of the cited decisions of these four different courts of appeals convincing and the decision of the board of review not contrary to legislative intent. It should also be emphasized that although an Act of God may have intervened to prevent the claimant from commencing his new employment within the seven days prescribed by R.C. 4141.291 for relief from the provisions of R.C. 4141.29, he also did not work in his new employment for a minimum of three weeks, another condition precedent to relief from the provisions of R.C. 4141.29, which, in this case, was not occasioned by any Act of God, but by his unsuitability for the position involved.

 

Accordingly, we find prejudicial error as assigned, reverse the judgment of the court of common pleas, and render the judgment it should have rendered affirming the decision of the board of review.

 DISPOSITION
 

Judgment Reversed and Final Judgment Rendered