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HARALD K. OTTO v. COMMONWEALTH PENNSYLVANIA (03/05/75)

decided: March 5, 1975.

HARALD K. OTTO, 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 Harald K. Otto, No. B-121033.

COUNSEL

Harald K. Otto, appellant, for himself.

Daniel R. Schuckers, Assistant Attorney General, with him Sydney J. Reuben, Assistant Attorney General, for appellee.

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

Author: Kramer

[ 17 Pa. Commw. Page 517]

This is an appeal by Harald K. Otto (Otto) from an order of the Unemployment Compensation Board of Review (Board), dated March 19, 1974, which affirmed an order of an unemployment compensation referee, dated January 14, 1974, denying Otto unemployment benefits.

Otto was laid off by his employer on September 14, 1973, and successfully applied for unemployment compensation benefits on September 16, 1973. In order to receive his benefits, Otto was required to appear at the

[ 17 Pa. Commw. Page 518]

Bureau of Employment Security (Bureau) office to sign up for his payments on designated Tuesdays, one of these designated days being Tuesday, December 4, 1973. On this date Otto was to have signed for the weeks ending November 24 and December 1, 1973. Otto reported on Thursday, December 6, 1973, two days late, at which time the Bureau personnel learned that he had been on vacation in Florida from November 23 to December 5, 1973. The Bureau denied benefits for the weeks ending November 24 and December 1, 1973, and appeals followed to the referee, the Board, and now to this Court.

Our scope of review in unemployment compensation cases is limited to resolving questions of law, and, absent fraud, determining whether all necessary 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).

[ 17 Pa. Commw. Page 519]

The critical statutory provision in this case is section 401(d) of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. ยง 801(d), which 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." If availability under section 401(d) is found lacking, and this conclusion is adequately supported by the evidence, a denial of benefits is proper. This follows from the Legislature's intention that only those unemployed persons who are actually and currently attached to the labor force are to receive the benefits of the law. Woodley v. Commonwealth of Pennsylvania, Unemployment Compensation Board of Review, 13 Pa. Commonwealth Ct. 8, 10, 317 A.2d 897, 898 (1974); Bledsoe v. Commonwealth of Pennsylvania, Page 519} Unemployment Compensation Board of Review, 13 Pa. Commonwealth Ct. 34, 36, 317 A.2d 320, 322 (1974).

There is no question that a person who absents himself from the vicinity in which he has declared himself available for suitable work is not actually attached to the labor force and is, therefore, ineligible for benefits. Stryker v. Commonwealth of Pennsylvania, Unemployment Compensation Board of Review, 14 Pa. Commonwealth Ct. 429, 322 A.2d 737 (1974); Stanek v. Unemployment Compensation Board of Review, 6 Pa. Commonwealth Ct. 351, 295 A.2d 198 (1972); Friel Unemployment Compensation Case, 167 Pa. Superior Ct. 362, 75 A.2d 7 (1950). This interpretation of the law has been strictly applied, as a review of the above-cited cases reveals. In Friel, for example, the claimant was in Washington, D.C. arranging for social security benefits, and in Stanek, the claimant ...


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