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HELEN R. DAVY v. COMMONWEALTH PENNSYLVANIA (10/17/78)

decided: October 17, 1978.

HELEN R. DAVY, 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 Helen R. Davy, No. B-134781-B.

COUNSEL

Walter Perry, with him Warren R. Baldys, Jr., for petitioner.

Susan Shinkman, Assistant Attorney General, with her Gerald Gornish, Attorney General, for respondent.

Judges Crumlish, Jr., Rogers and Craig, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 38 Pa. Commw. Page 154]

Helen R. Davy was declared ineligible for unemployment compensation by a referee and, on appeal, by the Unemployment Compensation Board of Review

[ 38 Pa. Commw. Page 155]

    on the ground she was not available for suitable work. 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).

Claimant was employed by Cluett-Peabody in Williamsport for eight years as a sewing machine operator. While so employed and since, she has lived in Canton, Pennsylvania, located about forty miles from Williamsport, from which she commuted to her job at Cluett-Peabody, usually, it seems, by car pool. On March 4, 1975, Mrs. Davy lost her job when the plant closed and she applied for and was granted unemployment benefits on November 9, 1975.

On June 3, 1976, an employee of the Bureau of Employment Security called Mrs. Davy by telephone and told her of a job opening for which she was apparently qualified in Williamsport. Mrs. Davy told the caller she had no means of transportation to Williamsport. The referral was not offered to her; and the Bureau then sent her a notice that she was ineligible for benefits on the ground of unavailability under Section 401(d) and for her failure to apply for suitable work under Section 402(a). Mrs. Davy appealed. After hearing, the referee correctly decided that Section 402(a) did not apply because the Bureau had not made the referral of work. He also decided that Section 401(d) did apply because her lack of transportation rendered her unavailable for suitable work. The Board affirmed the decision of the referee. After Mrs. Davy appealed the Board's decision to this Court, the parties agreed to remand to give her a further opportunity to present evidence. At the first hearing Mrs. Davy had testified that she would take a position in Williamsport if she had transportation, the clear inference being that she didn't have transportation and therefore could not work in Williamsport. At the second hearing she and her husband offered several

[ 38 Pa. Commw. Page 156]

    possibilities for transportation to Williamsport, the principal one suggested being the possibility of joining another car pool. In the end, the referee, as it was within his province to do, believed Mrs. Davy's testimony at the first hearing -- that she was not available for a job in Williamsport because she had no transportation.

Our scope of review is confined to questions of law and, absent fraud, a determination of whether the Board's findings are supported by the evidence. Questions of credibility and the weight to be given evidence are for the Board. Lakeview Forge Co. v. Unemployment Compensation Board of Review, 36 Pa. Commonwealth Ct. 204, 387 A.2d 984 (1978). Generally, the determination of whether a claimant is available for work as required by Section 401(d) of the Law is a question of ...


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