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JULIA SORACE v. COMMONWEALTH PENNSYLVANIA (12/23/81)

decided: December 23, 1981.

JULIA SORACE, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeal from the Order of the Unemployment Compensation Board of Review in the case of In Re: Claim of Julia Sorace, No. B-179255-B.

COUNSEL

Emily J. Leader, for petitioner.

William Kennedy, Associate Counsel, with him Steven R. Marcuse, Assistant Attorney General, Richard Wagner, Chief Counsel, and LeRoy S. Zimmerman, Attorney General, for respondent.

Judges Mencer, Williams, Jr. and Palladino, sitting as a panel of three. Opinion by Judge Palladino.

Author: Palladino

[ 63 Pa. Commw. Page 353]

Claimant appeals an order of the Unemployment Compensation Board of Review (Board) which, after reconsideration, affirmed a referee's denial of benefits

[ 63 Pa. Commw. Page 354]

    pursuant to Section 401(d) of the Unemployment Compensation Law (Law).*fn1 We reverse the Board's order.

From January 1, 1957, until June 28, 1979, Orweco Frocks employed Claimant to do dress repairs. Claimant was discharged from employment on July 17, 1979, for failing to report to work from July 2, 1979, until July 16, 1979. After a hearing, the referee determined that (1) Claimant's absence from work constituted willful misconduct which rendered Claimant ineligible for unemployment compensation and (2) Claimant effectively removed herself from the labor market, and thus rendered herself ineligible for unemployment benefits, by her self-imposed restriction of her working hours to prevent diminution of her social security benefits. Initially, the Board affirmed the decision of the referee. However, upon Claimant's request for reconsideration, the Board held that Claimant's absence from work did not constitute willful misconduct because (1) Claimant was absent under "legally compelling circumstances" attendant to the death of her brother-in-law and (2) Claimant's intended absence was reported to her employer, as company policy permitted, by a co-worker whom Claimant notified. Nevertheless, the Board agreed with the referee's decision that Claimant's self-imposed restriction of her working hours made Claimant unavailable for work and therefore, ineligible for benefits under Section 401(d) of the Law.

The sole issue on appeal before this Court is whether, in order to gain maximum social security benefits, an employee may unilaterally limit her working hours and still remain realistically attached to the

[ 63 Pa. Commw. Page 355]

    labor force for purposes of the Unemployment Compensation Law.

To be eligible for unemployment compensation, a claimant must prove her availability for suitable work. Pizzo v. Unemployment Compensation Board of Review, 56 Pa. Commonwealth Ct. 431, 424 A.2d 1021 (1981); Humanic v. Unemployment Compensation Board of Review, 55 Pa. Commonwealth Ct. 428, 423 A.2d 64 (1980). Where, as here, the party with the burden of proof did not prevail before the Board, this Court's scope of review consists of determining whether the findings of fact can be sustained without a capricious disregard of competent evidence and are consistent with ...


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