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KATHLEEN M. MYERS v. COMMONWEALTH PENNSYLVANIA (01/17/75)

decided: January 17, 1975.

KATHLEEN M. MYERS, 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 Kathleen M. Myers, No. B-108390B.

COUNSEL

John R. Fernan, with him Cartwright & Fernan, for appellant.

Charles G. Hasson, Assistant Attorney General, with him Sydney Reuben, Assistant Attorney General, and Israel Packel, Attorney General, for appellee.

Judges Kramer, Wilkinson, Jr. and Rogers, sitting as a panel of three. Opinion by Judge Kramer.

Author: Kramer

[ 17 Pa. Commw. Page 282]

This is an appeal by Kathleen M. Myers (Myers) from an order of the Unemployment Compensation Board of Review (Board), dated February 5, 1974, which affirmed an order of an unemployment compensation referee, dated July 14, 1970, denying Myers unemployment compensation benefits.

Myers was a full-time clerical employe of the International Powder Metallurgy Corporation (I.P.M.) when, on April 14, 1970, she requested a reduction in her working hours so that she might be able to spend more time at home with her pre-school age son. The reduction in hours was granted by I.P.M., and both parties characterize Myers' new schedule as "part-time." The record reveals that, pursuant to this new arrangement, Myers worked approximately 20 hours per week, which was half of the conventional 40-hour week which she had been working prior to the reduction. On June 10, 1970, Myers was laid off when I.P.M. replaced her with a full-time employe. Myers applied for unemployment compensation benefits, which were denied by the Bureau of Employment Security (Bureau), because, in the Bureau's view, she had voluntarily left her employment "without cause of a necessitous and compelling nature," as required by 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).

[ 17 Pa. Commw. Page 283]

The referee found, contrary to the Bureau's determination, that Myers' termination was involuntary,*fn1 but that she was still ineligible for benefits because of the provisions of section 401(d) of the Law, 43 P.S. § 801(d). The Board affirmed on this basis. Section 401(d) reads, in relevant part: "Compensation shall be payable to any employe who is or becomes unemployed, and who . . . [i]s able to work and available for suitable work . . . ."

In applying this section of the Law, the Board reasoned that Myers' ineligibility followed because "[t]estimony . . . by a representative of the Employment Service indicates that there were few job opportunities for persons possessing her skills in both a full time and part time capacity. Under the circumstances, therefore, the Board is constrained to hold that the claimant has so limited her availability as to remove herself from the labor market."

Our scope of review is limited to determining questions of law, and, absent fraud, a determination of whether the Board's findings are supported by substantial evidence. Stalc v. Commonwealth of Pennsylvania, Unemployment Compensation Board of Review, 13 Pa. Commonwealth Ct. 131, 134, 318 A.2d 398, 400 (1974); Hinkle v. Commonwealth of Pennsylvania, Unemployment Compensation Board of Review, 9 Pa. Commonwealth Ct. 512, 514, 308 A.2d 173, 174 (1973).

The crux of this case is whether or not Myers was "available for suitable work" during the period for which she claims benefits, or, stated another way, whether there was a reasonable opportunity for securing such work in the vicinity in which she lived. In Shay Unemployment Compensation Case, 177 Pa. Superior Ct. 294, 111 A.2d 174 (1955), the Superior Court settled any question regarding ...


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