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B. JAY TROUT v. COMMONWEALTH PENNSYLVANIA (12/08/77)

decided: December 8, 1977.

B. JAY TROUT, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of B. Jay Trout, No. B-134062.

COUNSEL

James Kearney, with him Alan Linder, for petitioner.

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

President Judge Bowman and Judges Mencer and Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 32 Pa. Commw. Page 611]

B. Jay Trout (claimant) appeals from an order of the Unemployment Compensation Board of Review (Board) which denied him benefits after determining that he was not available for suitable work as required by Section 401(d) of the Unemployment Compensation Law*fn1 (Law), 43 P.S. § 801(d).

The claimant accepted a janitorial job with Total Maintenance Service, Inc. (employer) with the understanding that he would move from his residence in Columbia, Pennsylvania to York County because the job required that he be "on-call" to report to various York County job sites. He did not, however, discuss the time period within which this move was to take place. He worked for approximately three weeks during May and in the early part of June, 1975, reporting to his assigned job sites on time and receiving his assignments through an aunt who resided in York County and who relayed the employer's telephone messages to him. During his last four days of employment, he experienced some difficulties with his automobile, but he still managed to find alternate means of transportation to get to work. On his last day of work on June 2, 1975, however, he was late, and he testified that the

[ 32 Pa. Commw. Page 612]

    operations manager who supervised his work suggested that he take a temporary lay-off. This was in spite of his assurances that he would be able to get to work on time in the future as he had in the past without using his own automobile. It was his understanding, he said, that the employer would call him later to advise him as to when to come back to work, but he testified that, when he telephoned the employer approximately ten days later to find out when to report, he was told that he had been replaced. The employer's representative testified that the services of the claimant were terminated because "[h]e had no transportation," and because "he was not living locally where it would be more convenient for him to work for us on a permanent basis."

The claimant applied for unemployment compensation benefits, and the compensation authorities approved his claim for eight weeks of compensation but disapproved benefits for the two weeks immediately following his last working day, holding that his transportation difficulties had made him unavailable for suitable work during that period and so ineligible then for benefits under Section 401(d) of the Law. The employer appealed this determination, and, after a hearing, the referee denied all benefits, concluding that the claimant's failure to move to York County constituted willful misconduct under Section 402(e) of the Law, 43 P.S. § 802(e), and that this made him ineligible for any benefits whatsoever. The Board, while it affirmed the referee's denial of benefits, held that there was no evidence of willful misconduct but that the claimant was, nevertheless, disqualified for all benefits under Section 402(d) of the Law because he was not available for suitable work.

Section 510 of the Law, 43 P.S. § 830, provides that this Court's scope of review in unemployment compensation appeals is limited to questions of law and, absent

[ 32 Pa. Commw. Page 613]

    fraud, to a determination of whether or not the findings of fact are supported by the evidence, and the claimant argues here that the following findings ...


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