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MARCUS G. BANKS v. COMMONWEALTH PENNSYLVANIA (06/21/83)

decided: June 21, 1983.

MARCUS G. BANKS, 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 Marcus G. Banks, No. B-197244.

COUNSEL

R. Michael Owens, for petitioner.

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

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

Author: Barbieri

[ 75 Pa. Commw. Page 161]

This is an appeal from an order of the Unemployment Compensation Board of Review (Board) affirming a referee's decision which found that Marcus G. Banks (Claimant) was disqualified from receiving unemployment compensation benefits by the provisions of Sections 401(d)(1) and 402(b) of the Unemployment Compensation Law (Law),*fn1 43 P.S. §§ 801(d)(1) and 802(b). The Board also affirmed the referee's conclusion that six weeks of benefits Claimant had received were fault overpayments within the intendment

[ 75 Pa. Commw. Page 162]

    of Section 804(a) of the Law, 43 P.S. § 874(a). We will remand.

Claimant was last employed as a shuttle car driver for National Car Rental System, Inc. (National) where he worked part time for approximately one month prior to his last day of work, December 9, 1980, when he voluntarily terminated his employment. While employed at National, Claimant applied for, and began to receive, unemployment compensation benefits. Claimant qualified for these benefits since his weekly earnings at National apparently did not exceed his partial benefit credit of $65.00 per week.*fn2 See Sections 4(m.1) and 404(d) of the Law, 43 P.S. §§ 753(m.1) and 804(d). The Office of Employment Security (Office) subsequently received notice, however, in the form of a "Low Earnings Report" submitted by National, that Claimant was paid on a per trip basis, and was free to schedule as many trips as he could between the hours of 7:00 A.M. and 11:00 P.M. The Office, believing this information to be disqualifying, then terminated Claimant's benefits and assessed him for fault overpayments for the six weeks of benefits he had received. Claimant appealed this determination to a referee, and after an initial hearing, and a subsequent remand hearing, the referee concluded (1) that Claimant's failure to pursue full time employment at National indicated that he was not able and available for work and was thus not entitled to benefits under the provisions of Section 401(d)(1) of the Law, (2) that Claimant was additionally disqualified from receiving benefits by the provisions

[ 75 Pa. Commw. Page 163]

    of Section 402(b) of the Law since he had terminated his employment without cause of a necessitous and compelling nature, and (3) that the benefits Claimant had received were fault overpayments within the intendment of Section 804(a) of the Law since Claimant "withheld information." The Board subsequently affirmed this decision, and the present appeal followed.

Before this Court, Claimant initially alleges that the Board improperly failed to consider whether his failure to pursue full time employment at National constituted a refusal of "suitable" employment as that term is defined in Section 4(t) of the Law, 43 P.S. § 753(t). We agree.

Section 401(d)(1) of the Law states that "[c]ompensation shall be payable to any employe who is or becomes unemployed, and who -- (d)(1) [i]s able to work and available for suitable work. . . ." (Emphasis ...


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