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MARY ANN ROMAN v. COMMONWEALTH PENNSYLVANIA (04/25/80)

decided: April 25, 1980.

MARY ANN ROMAN, 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 Mary Ann Roman, No. B-161156.

COUNSEL

R. Gregory Barton, with him Hayes C. Stover and Stephen M. Olson, Kirkpatrick, Lockhart, Johnson & Hutchison, for petitioner.

Elsa Newman, with her William J. Kennedy, Assistant Attorney General, Richard Wagner, Chief Counsel and Edward G. Biester, Jr., Attorney General, for respondent.

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

Author: Crumlish

[ 51 Pa. Commw. Page 46]

The Unemployment Compensation Board of Review affirmed the referee's denial of benefits for the compensable weeks ending (a) December 31, 1977 and January 7, 1978 under Section 401(d) of the Law*fn1 and (b) January 14, 1978, pursuant to Section 402(a) of the Law.*fn2 Mary Ann Roman now appeals to us, and we affirm.

[ 51 Pa. Commw. Page 47]

Petitioner was last employed on June 30, 1977, as a secretary with the Polachek Company. On December 23, 1977, the Pennsylvania State Employment Service informed her of prospective employment and an interview with the Pittsburgh Public Theatre, but was advised of her unavailability due to babysitter problems. Roman was then scheduled for a December 28th interview, but was unable to attend due to her infant daughter's illness. However, she did contact the Employment Service to explain her problem, and was advised to inform that office of her future availability for work. On January 9, 1978, Roman met with the employment interviewer and related that her infant's potential illness might affect reliability and might require a brief absence from work. The interviewer then telephoned the prospective employer with this information, who then declined to either interview or employ her.

Our scope of review in unemployment compensation cases is clearly limited to questions of law and, absent fraud, whether the Board's findings are consistent with each other and can be sustained without a capricious disregard of competent evidence. Miller v. Unemployment Compensation Board of Review, 29 Pa. Commonwealth Ct. 541, 372 A.2d 35 (1977).

Generally, the question of availability as required by Section 401(d) is one of fact for the Board of Review. Graham v. Unemployment Compensation Board of Review, 14 Pa. Commonwealth Ct. 445, 447, 322 A.2d 807, 808 (1974). Though the burden of proof is on the claimant's shoulders, a prima facie case may be established by showing that the claimant registered and declared her availability for either temporary or permanent work. Dingel v. Unemployment Compensation Board of Review, 14 Pa. Commonwealth Ct. 484, 487, 322 A.2d 731, 733 (1974). Appellant argues that this burden has been met. However, the presumption

[ 51 Pa. Commw. Page 48]

    is clearly rebuttable if the Board could have reasonably drawn inferences from the surrounding circumstances to rebut it in this case. Dingel v. Unemployment Compensation Board of Review, supra, at 487-88, 322 A.2d at 733. We have also been reminded that a reviewing court must give the party prevailing below the benefit of all reasonable and logical inferences. Unemployment Compensation Board of Review v. Shrump, 22 Pa. Commonwealth Ct. 570, 573, 349 A.2d 787, 789 (1975).

The test for unavailability under the Unemployment Compensation Law has required actual and current attachment to the labor force such that at all times, claimant is ready, willing and able to accept either temporary or permanent suitable employment. See Dingel v. Unemployment Compensation Board of Review, supra, at 487, 322 A.2d at 733; Tokar v. ...


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