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ALL STEEL v. COMMONWEALTH PENNSYLVANIA (03/03/80)

decided: March 3, 1980.

ALL STEEL, INC., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW AND JOSEPH J. MARSHALL, SR., RESPONDENTS



Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Joseph J. Marshall, Sr., No. B-161729.

COUNSEL

Lawrence B. Cohn, with him Bart E. Ecker, of Laputka, Bayless, Ecker & Cohn, P.C., for petitioner.

Richard Wagner, Chief Counsel, with him Michael D. Klein, Assistant Attorney General, and Edward G. Biester, Jr., Attorney General, for respondents.

Judges Wilkinson, Jr., Rogers and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail. President Judge Bowman did not participate in the decision in this case. Judge DiSalle did not participate in the decision in this case.

Author: Macphail

[ 49 Pa. Commw. Page 553]

All Steel, Inc. has filed a petition for review of the Order of the Unemployment Compensation Board of Review (Board) disallowing further appeal of the referee's decision, which reversed the decision of the Bureau of Employment Security (now known as the Office of Employment Security) and granted partial

[ 49 Pa. Commw. Page 554]

    unemployment compensation benefits to Joseph J. Marshall, Sr. (Claimant).

Claimant was employed by All Steel, Inc. (Employer) as a shipper crater during the period at issue. On Monday, February 6, 1978, Claimant was unable to report to work on second shift (3:30 p.m.-12:00 midnight) as scheduled, due to a severe snowstorm which caused roads to become impassable. Though Employer did not cancel second shift on that date, it cancelled third shift and closed the entire plant on Tuesday, February 7, 1978, because of the heavy accumulation of snow. Claimant did work February 8, February 9, and February 10, 1978. No work was available to Claimant on Saturday, February 11, 1978.

Claimant filed an application for unemployment compensation benefits on February 11, 1978, for partial benefit credit for work lost on February 6, 1978, as a result of his inability to travel to work. The Employer contested the claim on the ground that the plant was open and work was available to Claimant on that specific day. Thus the Employer has presented us with the narrow issue of whether employees are eligible for unemployment compensation benefits in the event that work is available, yet the employees are unable to report for work because of inclement weather.

As conceded by Employer, Claimant does fit within the definition of "Unemployed" as set forth in Section 4(u) of the Unemployment Compensation Law (Act), Act of Dec. 5, 1936, Second Ex. Sess., P.L. [1937] 2897, art. I, § 4, as amended, 43 P.S. § 753(u):

An individual shall be deemed unemployed (I) with respect to any week (i) during which he performs no services for which remuneration is paid or payable to him and (ii) with respect to which no remuneration is paid or payable to him, or (II) with respect to ...


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