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DR. JAMES SHIRA v. COMMONWEALTH PENNSYLVANIA (10/31/73)

decided: October 31, 1973.

DR. JAMES SHIRA, APPELLANT,
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, APPELLEE



Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Sheila R. Mellott, No. B-115019.

COUNSEL

Jay L. Benedict, for appellant.

Sydney Reuben, Assistant Attorney General, with him Israel Packel, Attorney General, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Mencer.

Author: Mencer

[ 10 Pa. Commw. Page 459]

This is an appeal filed by Dr. James Shira from an order of the Unemployment Compensation Board of Review (Board) awarding compensation to Sheila R. Mellott.

Mrs. Mellott had been employed by Dr. Shira as a dental technician for approximately three and one-half years. This employment was terminated on June 11, 1971, at which time she was in her sixth month of pregnancy.

Mrs. Mellott, on November 7, 1971, more than thirty days after the birth of her child, applied for unemployment compensation benefits and was found to be eligible by the Bureau of Employment Security. Dr. Shira appealed this determination. An Unemployment Compensation referee was assigned the case and after a hearing, the referee concluded that Mrs. Mellott was not eligible for benefits because at the time of her application she was not able to work and available for work as required by Section 401(d) of the Unemployment Compensation Act, Act of December 5, 1936, P.L. (1937) 2897, as amended, 43 P.S. ยง 801(d).

Mrs. Mellott appealed to the Board, and on November 20, 1972, the decision and order of the Board reversed the referee and awarded her benefits. This appeal followed and we affirm.

Dr. Shira argues, inter alia, that the Board erred in its findings of fact. Our scope of review in unemployment cases is confined to questions of law and, absent fraud, a determination as to whether the Board's findings are supported by the evidence. Questions of credibility and the weight to be given evidence are for the

[ 10 Pa. Commw. Page 460]

Board. Furthermore, the party victorious below is to be given the benefit of any inferences which can reasonably and logically be drawn from the evidence. See James v. Unemployment Compensation Board of Review, 6 Pa. Commonwealth Ct. 489, 296 A.2d 288 (1972).

The sole issue before this Court in regard to the Board's findings is whether they are supported by the evidence. The findings which Dr. Shira contests are the following: "3. Claimant was willing and able to continue her employment even though she was in her sixth month of pregnancy." and "4. Claimant is able and available for work as certified to by her physician." Both these findings are supported by substantial evidence in the record and are therefore binding ...


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