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UNEMPLOYMENT COMPENSATION BOARD REVIEW COMMONWEALTH PENNSYLVANIA v. LEON B. MATTHYS (05/14/76)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: May 14, 1976.

UNEMPLOYMENT COMPENSATION BOARD OF REVIEW OF THE COMMONWEALTH OF PENNSYLVANIA
v.
LEON B. MATTHYS, APPELLANT

Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Leon B. Matthys, No. B-127008.

COUNSEL

Judd F. Crosby, for appellant.

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

Judges Wilkinson, Jr., Mencer and Blatt, sitting as a panel of three. Opinion by Judge Mencer. Judge Kramer did not participate in the decision in this case.

Author: Mencer

[ 24 Pa. Commw. Page 475]

The facts in this case reveal that Leon B. Matthys (claimant) had been receiving unemployment compensation

[ 24 Pa. Commw. Page 476]

    benefits due to his compensable separation from employment in 1974. In the spring of 1975, claimant, on his own initiative, responded to a newspaper advertisement seeking "full-time" or "part-time" school bus drivers. Claimant acquired the part-time job which involved one daily afternoon trip for which he was paid $7.75. Although he did inform his new employer of his availabilty for morning trips if he were needed, he did not directly seek the so-called "full-time" (4-hour-a-day) job because he wished to be free most mornings to attend job interviews.

The Bureau of Employment Security (Bureau), a referee, and the Unemployment Compensation Board of Review (Board) denied benefits to claimant for a period from the week ending March 29, 1975, through the week ending May 10, 1975,*fn1 on the basis of claimant's alleged violation of 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), which provides in pertinent part:

"Compensation shall be payable to any employe who is or becomes unemployed, and who --

"(d) Is able to work and available for suitable work. . . ."

Our scope of review here is limited to questions of law and, absent fraud, to a determination as to whether the Board's findings are supported by the evidence. Unemployment Compensation Board of Review v. Pinger, 21 Pa. Commonwealth Ct. 61, 342 A.2d 781 (1975).

We therefore turn to the record where we note that the Board, in adopting the opinion of the referee, set forth the following findings of fact:

[ 24 Pa. Commw. Page 477]

"1. Claimant was last employed by Allegheny Valley Transit, Pittsburgh, PA, as a School Bus Driver, working two hours a day from 2.00 p.m. to 4:00 p.m. at $7.75 a trip, and his last day of work was June 6, 1975.*fn2

"2. Claimant secured this employment as a result of the employer's ad in the newspaper wherein the employer was advertising for full-time or part-time employees.

"3. Claimant applied for part-time work only because he wished to be available in the mornings in case he was called for an interview with another employer." (Footnote added.)

It then concluded that "[t]he record reveals that the claimant applied for part-time work only, although the employer had advertised for full-time or part-time employees. Since the claimant restricted his availability by applying for part-time work only, he cannot be considered to have been realistically attached to the labor market and he, therefore, must be disqualified from receiving benefits under the provisions of Section 401(d) of the Law." We believe that this conclusion represents a fundamental error of law in the Board's adjudication.

The Board seems to confuse the eligibility provisions of Section 401(d) with those of Section 402(a), 43 P.S. § 802(a).*fn3 In its brief, the Board states that "[t]he law,

[ 24 Pa. Commw. Page 478]

    however, definitely requires that one accept full-time work when it is available." This conclusion certainly is valid under Section 402(a) where the claimant is referred to, and then offered employment by, the Bureau or by any employer who properly notifies the Bureau. However, Section 401(d) does not apply to rejections of specific jobs. Rather it is the purpose of Section 402(a) to deny benefits to claimants who refuse referral work. See Paisley v. Unemployment Compensation Board of Review, 12 Pa. Commonwealth Ct. 427, 315 A.2d 908 (1974). The purpose of Section 401(d) is to insure that claimants either initially, at the time of their Bureau interviews, or later, during their responses to ongoing Bureau inquiries or employment interviews, do not so restrict their future availability for potential work as to render themselves such that they are not realistically attached to the labor market. See Myers v. Unemployment Compensation Board of Review, 17 Pa. Commonwealth Ct. 281, 330 A.2d 886 (1975).*fn4 Section 401(d) seeks to insure that claimants are realistically attached to the labor force; i.e., they are able to do some type of work, and there is reasonable opportunity for securing such work in the vicinity in which they live. Shay Unemployment Compensation Case, 177 Pa. Superior Ct. 294, 111 A.2d 174 (1955).

[ 24 Pa. Commw. Page 479]

The Board's findings are not responsible to a Section 401(d) inquiry. While the claimant's conduct, in personally seeking out only a part-time job (2 hours a day) rather than an allegedly available full-time job (4 hours a day), may be relevant as a reflection of his state of mind concerning his availability for future full-time work, it is far from being conclusive as to a Section 401(d) determination. Claimant has alleged, among other things, (1) that at the time of his registration he placed no restrictions on his employment, (2) that he continued to hold himself out for, and in fact actively sought, a full-time position of any type, (3) that he advised his employer of his availability for morning runs and yet received only one during the entire time of his employment, and (4) that in fact a traditional full-time job, though advertised, was not really available with this particular employer at the time of claimant's application. None of these allegations were fully considered below.

Additionally, we note that the Board has failed to consider that a part-time employment limitation does not, per se, render a claimant ineligible under Section 401(d). See Myers, supra, and Shay, supra.

Therefore, we issue the following

Order

And Now, this 14th day of May, 1976, the order of the Unemployment Compensation Board of Review relative to the claim of Leon B. Matthys is reversed, and the record is remanded for further proceedings consistent with the above opinion.

Judge Kramer did not participate in the decision in this case.

Disposition

Reversed and remanded.


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