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UNEMPLOYMENT COMPENSATION BOARD REVIEW COMMONWEALTH PENNSYLVANIA v. PATRICIA SHRUMP (12/29/75)

decided: December 29, 1975.

UNEMPLOYMENT COMPENSATION BOARD OF REVIEW OF THE COMMONWEALTH OF PENNSYLVANIA
v.
PATRICIA SHRUMP, APPELLANT



Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Patricia Shrump, No. B-116847-B.

COUNSEL

Alex E. Echard, with him David G. Petonic, for appellant.

Charles G. Hasson, Assistant Attorney General, with him Sydney Reuben, Assistant Attorney General, and Robert P. Kane, Attorney General, for appellee.

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

Author: Kramer

[ 22 Pa. Commw. Page 572]

This is an appeal by Patricia Shrump from an order of the Unemployment Compensation Board of Review, dated February 28, 1975, which denied benefits. In a per curiam order dated July 17, 1974, we remanded the matter to the Board for the purpose of reconsidering its prior decision and for the taking of additional testimony relative to whether Shrump was available for suitable work as required by Section 401(d) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 801(d). The Board concluded, as it had in its original decision, that Shrump was not available for work during the claim weeks in question. We will affirm.

Shrump was discharged by Pittsburgh Reflector Company by letter dated June 19, 1972. The employer cited excessive absenteeism as the basis for the dismissal, and Shrump does not question the fact that during her period of employment her absenteeism was far in excess of what an employer could be expected to tolerate. This absenteeism was, however, understandable, inasmuch as Shrump has a history of menstrual problems which were at times so severe that she was prevented from even standing up.

[ 22 Pa. Commw. Page 573]

The referee, who originally heard the case, awarded benefits after concluding that Shrump's medical problem precluded any finding of willful misconduct. The Board remanded the matter to the referee, and eventually reversed his determination of eligibility. In reversing, the Board agreed that no willful misconduct was present, but it found that Shrump's medical problem rendered her unavailable for work for the weeks in question. Shrump appealed to this Court, arguing, inter alia, that the question of availability had not been anticipated and that a fair hearing had not been granted because the Board sua sponte raised the question after the record had been closed. Upon motion by counsel for the Board, we remanded.

Our scope of review in cases of this kind is limited to questions of law and, absent fraud, to a determination of whether the Board's findings are supported by the evidence. Dingel v. Unemployment Compensation Board of Review, 14 Pa. Commonwealth Ct. 484, 322 A.2d 731 (1974). The party prevailing below is to be given the benefit of any inferences which can reasonably be drawn from the evidence. Dingel, supra; Shira v. Unemployment Compensation Board of Review, 10 Pa. Commonwealth Ct. 457, 310 A.2d 708 (1973). We also note as relevant the following passage from Dingel :

"It is clear, of course, that the initial burden of proving a right to unemployment compensation rests with the claimant. Kanouse v. Unemployment Compensation Board of Review, 9 Pa. Commonwealth Ct. 188, 305 A.2d 782 (1973). The claimant here argues that she has established such a prima facie case of availability by registering for work and declaring her availability for full time work, and she cites Sturdevant Unemployment Compensation Case, 158 Pa. Superior Ct. 548, 45 A.2d 898 (1946). The presumption of availability, however, is rebuttable, and the question thus becomes whether or not the Board could

[ 22 Pa. Commw. Page 574]

    have reasonably drawn an inference from the surrounding circumstances to rebut it in this case." 14 Pa. ...


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