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REGINALD H. WARDEN v. COMMONWEALTH PENNSYLVANIA (01/13/83)

decided: January 13, 1983.

REGINALD H. WARDEN, JR., 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 Reginald H. Warden, Jr., No. B-189889.

COUNSEL

Marian B. Cocose, for petitioner.

Charles G. Hasson, Associate Counsel, with him Richard L. Cole, Jr., Chief Counsel, for respondent.

President Judge Crumlish, Jr. and Judges Blatt and Doyle, sitting as a panel of three. Opinion by President Judge Crumlish, Jr.

Author: Crumlish

[ 71 Pa. Commw. Page 184]

Reginald Warden was denied unemployment compensation benefits and assessed a fault overpayment by the Board. He appeals; we affirm.

Warden, a Yellow Freight driver, was put on lay-off status in January 1980. Under the terms of the collective bargaining agreement, he had two recall options.*fn1 One was the intermittent list, which would have resulted in his being called in the order of

[ 71 Pa. Commw. Page 185]

    seniority for any available work. In the other, he would be called only if the employer could guarantee a full week's work. He exercised the latter option.

The referee concluded, and the Board affirmed, that Warden was unavailable for work and denied benefits under Section 401(d) of the Unemployment Compensation Law.*fn2 The Board further concluded that Warden, having given separation due to lack of work as his basis for compensation and not having notified the authorities of this possible posture on the employer's intermittent list, should be assessed a fault overpayment under Section 804(a)*fn3 of the Law.

Warden now asserts that this minimal restriction on his work availability should not preclude him from receiving benefits. He further asserts that the employer's requirement that the twenty-four hours a day on-call requirement of the intermittent list was too restrictive.

It is axiomatic that the burden of proving availability for work is on the claimant and that the question of availability is one of fact for the Board. Roman v. Unemployment Compensation Board of Review, 51 Pa. Commonwealth Ct. 44, 413 A.2d 775 (1980). When the party with the burden of proof has not prevailed below, our scope of review is limited to determining if there was a capricious disregard of competent evidence and whether the Board's findings are consistent with each other and its conclusions of law. Id.

Before the referee, Warden testified that he was aware that he would be unable to change his option once elected because this had been the policy in the previous ...


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