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FRANK V. PERCOSKY v. COMMONWEALTH PENNSYLVANIA (03/19/84)

decided: March 19, 1984.

FRANK V. PERCOSKY, 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 Frank V. Percosky, No. B-201624.

COUNSEL

Joseph B. Policicchio, Ogle, Metz & Policicchio, for petitioner.

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

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

Author: Barry

[ 81 Pa. Commw. Page 98]

Frank V. Percosky (Claimant) appeals a decision of the Unemployment Compensation Board of Review (Board) which affirmed a referee's determination denying Claimant unemployment compensation benefits for the period from September 12, 1981 through October 20, 1981 because he was found to have violated the "spirit and intent" of Section 401(d)(1) of the Unemployment Compensation Law (Act), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. ยง 801(d)(1). This provision holds that unemployment "[c]ompensation shall be payable to any employe who is or becomes unemployed, and who . . . [i]s able to work and available for suitable work. . . ." We vacate and remand.

Claimant was employed by Baltimore Life Insurance Company as an insurance agent at the rate of $200.00 per week for three years. On March 6, 1981, Claimant was separated from his employment. In an interview with an unemployment compensation claims examiner on September 18, 1981, Claimant stated, "I'd need $15,000.00 a year to go to work. I'd accept less but I'd have to get a substantial commission. If straight salary -- $15,000.00 -- if commission I'd try

[ 81 Pa. Commw. Page 99]

    to work something out with employer -- also would want benefits." This amount was essentially what the Claimant was receiving when he was laid off. The referee determined that because Claimant told the claims examiner that he needed $15,000.00 a year to go to work, Claimant imposed limitations on his availability for suitable work and essentially removed himself from the labor market.

At his hearing before the referee on October 20, 1981, Claimant explained that the $15,000.00 salary was his preference but not an absolute requirement. (T. 3). The claims examiner, however, testified at the hearing that it was his impression that Claimant needed $15,000.00 a year to start to work and that, if there was a job offer made to him or a job that paid less than $15,000.00, Claimant would not accept it. (T. 5).

To be eligible for unemployment compensation, a claimant must be available for suitable employment and it is the claimant's burden to demonstrate such availability. Craig v. Unemployment Compensation Board of Review, 65 Pa. Commonwealth Ct. 305, 442 A.2d 400 (1982) citing Humanic v. Unemployment Compensation Board of Review, 55 Pa. Commonwealth Ct. 428, 423 A.2d 64 (1980).

The question of whether a claimant has removed himself from the labor market is a matter of drawing the line between those cases where a claim of reasonable availability is patently untenable and those in which a factual inquiry should be conducted as to the conditions of the local labor market.

Goodwin v. Unemployment Compensation Board of Review, 32 Pa. Commonwealth Ct. 285, 288, 378 A.2d 1308, 1310 (1977) citing Unemployment Compensation Board of Review v. Wilson, 24 ...


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