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BEATRICE M. BURKE v. COMMONWEALTH PENNSYLVANIA (06/08/83)

decided: June 8, 1983.

BEATRICE M. BURKE, 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 Beatrice M. Burke, No. B-195937.

COUNSEL

Paul Domalakes, Rubright, Domalakes, Troy & Miller, for petitioner.

Steven J. Neary, Associate Counsel, with him Richard L. Cole, Jr., Chief Counsel, for respondent.

Judges Blatt, Williams, Jr. and Craig, sitting as a panel of three. Opinion by Judge Williams, Jr.

Author: Williams

[ 75 Pa. Commw. Page 2]

Beatrice M. Burke (claimant) appeals to this Court for relief from the Unemployment Compensation Board of Review's (Board) decision that she was unavailable for work, and thus ineligible for unemployment benefits pursuant to Section 401(d)(1) of the Unemployment Compensation Law (Law).*fn1

The claimant was employed as a presser by Charles Rabin & Company until the employer's plant was closed on December 3, 1980. On January 11, 1981

[ 75 Pa. Commw. Page 3]

    the claimant applied for unemployment benefits, which she received until March 17, 1981. On the date last mentioned, the Office of Employment Security (OES) issued a determination discontinuing the claimant's benefits pursuant to Section 402(a) of the Law.*fn2 The facts which led to this action by the OES are set forth below.

On March 12, 1981 the claimant was referred to College Casuals for a position as a pressing machine operator at an hourly rate of $4.00. The claimant is a resident of Frackville, Schuylkill County, Pennsylvania, which is approximately seventeen miles from the prospective employer's plant located in Sheppton, Pennsylvania. Anticipating a problem of getting to and from work, the claimant telephoned College Casuals on two separate occasions to inquire if any of its employees lived near her. The claimant does not own a car and does not have a driver's license. The area in which she lives is not serviced by public transportation. Consequently, she has access to neither private nor public transportation to get to College Casuals in Sheppton, Pennsylvania. When College Casuals informed the claimant that it had no employees from her hometown or the immediate vicinity the claimant refused the referral.

On appeal from the OES' determination, it was decided by the referee that the OES' determination should be affirmed. However, on a further appeal to the Board, it was decided that the claimant was not ineligible under Section 402(a), but was disqualified pursuant to Section 401(d)(1) of the Law. Section 401(d)(1) of the Law provides that to be eligible for compensation benefits a claimant must be, at all times,

[ 75 Pa. Commw. Page 4]

    able and available for suitable work. It is true that a claimant establishes a prima facie case of availability and creates a presumption of availability by registering for work with the unemployment authorities. Wincek v. Unemployment Compensation Board of Review, 64 Pa. Commonwealth Ct. 201, 439 A.2d 890 (1982). However, that presumption is rebuttable by ...


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