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DONNA G. FENK v. COMMONWEALTH PENNSYLVANIA (08/22/79)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: August 22, 1979.

DONNA G. FENK, 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 Donna G. Fenk, No. B-151454.

COUNSEL

Richard J. Federowicz, for petitioner.

Charles G. Hasson, Assistant Attorney General, with him Richard Wagner, Chief Counsel, and Edward G. Biester, Jr., Attorney General, for respondent.

Judges Blatt, DiSalle and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 45 Pa. Commw. Page 214]

Donna Fenk (Claimant) appeals to this Court from a decision of the Unemployment Compensation Board of Review (Board) affirming a Referee's decision denying her unemployment compensation benefits. The sole issue raised by Claimant is whether the Board's decision was based on substantial evidence. For the reasons which follow, we affirm.*fn1

Claimant had been employed by Charles Lawrence Casuals (Employer) as the head of the Sportswear Department for 10 months at a wage of $2.60 per hour. Prior to July 5, 1977, Claimant worked 40 1/2 hours per week. On that date, she informed Employer that she could not work her scheduled hours, but that she would be able to work Monday through Friday, 10:00 A.M. to 5:30 P.M.*fn2 Claimant testified that she requested a reduction in her hours because she was pregnant.

[ 45 Pa. Commw. Page 215]

Employer's representatives testified that the reasons given by Claimant for her request were her pregnancy and her desire to spend time with her husband. Claimant also testified that she requested that her hours be reduced from 40 1/2 to 32 per week. Janice L. Gash, Employer's vice-president, stated that Claimant asked for a reduced work week, but did not specify the number of hours she would work. Finally, Gash testified that she told Claimant she would try to help her but that she could make no promises as to the amount of time she would be offered. Claimant had presented a doctor's certificate to the Bureau of Employment Security (Bureau) which stated that Claimant was pregnant, that her delivery date was November 15, 1977, that Claimant would be permitted to work until mid-October, 1977, and that Claimant had no limitations "at this time." The certificate was dated August 15, 1977, more than a month after Claimant originally asked for reduced hours because of her pregnancy.

The Bureau denied Claimant's application for benefits on the basis that she was unavailable 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) (Law). The Referee affirmed the Bureau's determination on the basis that Claimant was not unemployed as that term is defined in Section 4(u) of the Law, 43 P.S. § 753(u),*fn3 and that she

[ 45 Pa. Commw. Page 216]

    was absent from available work at her own request. The Board affirmed the Referee's decision.

In unemployment compensation cases, the credibility of witnesses, the weight to be given the testimony, and the reasonable inferences to be drawn therefrom are for the Board to determine. The findings of the Referee or Board, if supported by substantial evidence and in the absence of fraud are conclusive and are binding on this Court. Yasgur v. Unemployment Compensation Board of Review, 16 Pa. Commonwealth Ct. 33, 35, 328 A.2d 908, 910 (1974). Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Balaschak v. Unemployment Compensation Board of Review, 39 Pa. Commonwealth Ct. 313, 316, 395 A.2d 638, 640 (1978). Each week of unemployment is subject to a separate claim the validity of which is determined by the conditions existing during that week. See Hunt v. Unemployment Compensation Board of Review, 8 Pa. Commonwealth Ct. 577 582 n. 1, 302 A.2d 866, 869 n. 1 (1973). In considering each of the three weeks for which Claimant applied for benefits, we find that the Referee's findings were supported by substantial evidence and that his conclusions were correct.

During the week ending July 16, Claimant did not report for work on July 11 or July 12 because she was on her honeymoon. She was scheduled to work on July 13, but she did not report. She did work on July 15, earning $11.70. She did not work on July 14, a Thursday, or July 16, a Saturday. Both were days she normally would have been scheduled to work had she not refused to do so because of her self-imposed time limitations.

During the week ending July 23, Claimant worked July 20 and July 22 earning $10.40 each day. Of the four remaining days that week, Tuesday, July 19 was

[ 45 Pa. Commw. Page 217]

    the only one on which Claimant was available, by her standards, for work. During the week ending July 30, Claimant worked July 29 and earned $10.40. Again, she was available for work by her standards only two other days that week, July 26 and 27.

Claimant apparently believes that Employer was obligated to provide her with work during the hours she requested and that if work was not available she was entitled to unemployment benefits. Claimant is incorrect. Claimant voluntarily reduced her hours from 40 1/2 weekly to a lesser number. Although she used her physical condition due to her pregnancy as an excuse for doing so, her own doctor certified that she was under no work limitations as late as August 15, 1977. We find, then, that Claimant voluntarily reduced her hours without cause of a necessitous and compelling nature. See Section 402(b)(1) of the Law, 43 P.S. § 802(b)(1). Furthermore, Claimant was made aware of the fact that although Employer would try to give her work, Employer needed full-time employees for her position. It was Claimant's self-imposed limitations on her availability, especially her unwillingness to work evenings and Saturdays, and not lack of work from Employer, that caused her unemployment.*fn4 We hold, therefore, that Claimant voluntarily made herself unavailable for work with Employer and that the decision denying her benefits was correct.

Order affirmed.

[ 45 Pa. Commw. Page 218]

Order

And Now, this 22nd day of August, 1979, the order of the Unemployment Compensation Board of Review, dated December 8, 1977, affirming the Referee's denial of unemployment compensation benefits to Donna G. Fenk, Petitioner, is affirmed.

Disposition

Affirmed.


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