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JIMMIE LEE CARTER v. COMMONWEALTH PENNSYLVANIA (04/01/82)

decided: April 1, 1982.

JIMMIE LEE CARTER, 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 Jimmie Lee Carter, No. B-180992.

COUNSEL

William Zacharellis, with him Francis W. Roscoe, II, for petitioner.

John T. Kupchinsky, Associate Counsel, with him Richard L. Cole, Jr., Chief Counsel, for respondent.

Judges Mencer, Blatt and MacPhail, sitting as a panel of three. Opinion by Judge Mencer. Judge Palladino did not participate in the decision in this case.

Author: Mencer

[ 65 Pa. Commw. Page 570]

Jimmie Lee Carter (claimant) has appealed from an order of the Unemployment Compensation Board

[ 65 Pa. Commw. Page 571]

    of Review (Board) affirming a referee's decision which held that the claimant was ineligible for unemployment compensation benefits and that a fault overpayment of $2,397 is subject to recovery. The reasons for the disqualification were twofold: (1) The claimant was disqualified under Section 402(a) of the Unemployment Compensation Law (Act), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(a), for his failure to accept suitable work offered by his employer during part of the period he received benefits, and (2) the claimant was disqualified under Section 401(d) of the Act, 43 P.S. § 801(d), in that he was certified disabled by a physician from August 20, 1979 through October 14, 1979 and therefore was not able to work and was not available for suitable work. The Board also affirmed a fault overpayment in the amount of $2,397, finding that the claimant deliberately withheld information from the Office of Employment Security concerning his ineligibility and thus was liable under Section 804(a) of the Act, 43 P.S. § 874(a) (allowing for the recoupment of fault overpayments).

The claimant asserts that the decision of the Board is unsupported by substantial evidence in that (1) the record of the proceedings is incomprehensible, (2) the referee acted as a witness rather than as an impartial factfinder, and (3) the evidence is insufficient as to the reasons for the determination that the claimant was unavailable for recall to work. For purposes of our discussion, we will deal with the claimant's contentions in reverse order.

The referee found, and the Board affirmed, that the claimant was disqualified, for a portion of the claim period, under Section 402(a) of the Act because he refused to accept suitable work offered by his employer. The referee found specifically that the

[ 65 Pa. Commw. Page 572]

    employer, by letter of July 16, 1979, had offered claimant employment at a jobsite in Allentown and also offered him employment by letter of September 18, 1979 at a jobsite in Easton, Pennsylvania.

The reason advanced by the claimant for failing to respond to the offer was that he felt he did not want to drive from his house in Scranton to Allentown, despite the fact that previously he had regularly driven from Scranton to Easton jobsites. Throughout the record, the claimant reiterated that he felt that he would not be required to accept work if he had to drive more than 50 miles to do so. A further ...


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