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MARY CILLO v. COMMONWEALTH PENNSYLVANIA (08/28/86)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: August 28, 1986.

MARY CILLO, 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 Mary Cillo, No. B-228269.

COUNSEL

Edward Van Stevenson, Jr., for petitioner.

Jonathan Zorach, Associate Counsel, with him, Paul E. Baker, Acting Deputy Chief Counsel, for respondent.

Stanley M. Stein, Feldstein, Grinberg, Stein & McKee, for intervening respondent, Liken Nursing Services.

President Judge Crumlish, Jr., and Senior Judges Rogers and Kalish, sitting as a panel of three. Opinion by Senior Judge Rogers. Dissenting Opinion by President Judge Crumlish, Jr.

Author: Rogers

[ 100 Pa. Commw. Page 158]

The claimant in this unemployment compensation case, Mary Cillo, is a registered nurse who, after a separation from her employment by a hospital under circumstances which qualified her for compensation, sought and found employment with Liken Nursing Services (employer), a supplier of nurses to private persons and institutions. The claimant began work for Likens in June or July of 1981; she last worked for them on September 18, 1983. This case concerns her entitlement to compensation for the weeks ending September 24, 1983 through October 22, 1983.

The issue was and is whether the claimant was, during the weeks just mentioned, in the words of Section 401(d)(1) of the Unemployment Compensation Law, 43 P.S. ยง 801(d)(1), "able to work and available for suitable work." The Office of Employment Security decided that she was; a referee, whose decision the Board of Review affirmed, held that she was not. The claimant has appealed the board's decision.

The employer's contest was based upon the assertion, accepted by the referee and the board, that the

[ 100 Pa. Commw. Page 159]

    claimant had so conditioned and limited her hours of work that she was in fact not available for suitable work.

The principles applicable in Section 401(d)(1) cases are familiar and have been stated as:

"The basic purpose of the statutory requirement of availability is to establish that a claimant is actually and currently attached to the labor force. . . . It is clear that a claimant is attached to the labor force so long as he is able to do some type of work and there is reasonable opportunity for securing such work in the vicinity in which he lives." Quiggle Unemployment Compensation Case, 172 Pa. Superior Ct. 430, 435, 94 A.2d 367, 370 (1953).

"Whether or not a claimant is able to do some type of work, and whether or not a reasonable opportunity for securing such work exists, are usually questions of fact for the Board." Tokar v. Unemployment Compensation Board of Review, 35 Pa. Commonwealth Ct. 241, 247, 385 A.2d 634, 636 (1978).

"[The] statute [does not] require that the claimant shall be available for full-time work, or for permanent, as distinguished from temporary employment. . . . It is sufficient if he is able to do some type of work, and there is a reasonable opportunity for securing such work." Sturdevant Unemployment Compensation Case, 158 Pa. Superior Ct. 548, 561, 45 A.2d 898, 905 (1946).

"While it is generally necessary for the referee to conduct a factual inquiry into the conditions of the local labor market before it can be held that a claimant's conditions or limitations as to employment have rendered him or her unavailable, some restrictions on availability are so untenable and illustrative of a lack of good faith on the part of the claimant on their face as to be disqualifying as a matter of law." Craig v. Unemployment Compensation Board of Review, 65 Pa. Commonwealth Ct. 305, 309, 442 A.2d 400, 402 (1982).

[ 100 Pa. Commw. Page 160]

"There is no question that some restrictions on availability are, as a matter of law, disqualifying. For instance, if a claimant restricts employment to one or two hours per day, or to a short period of time in the middle of the night, there could be no doubt that such a person is not attached to the labor market in a meaningful way. The question then resolves itself to a matter of drawing the line between those cases where a claim of reasonable availability is patently untenable and those in which a worthwhile factual inquiry may be conducted into the local labor market." Unemployment Compensation Board of Review v. Wilson, 24 Pa. Commonwealth Ct. 21, 25, 354 A.2d 260, 262 (1976).

The referee in this case made no inquiry into the local labor market. He nevertheless found that "the claimant is not realistically attached to the labor market." Were the conditions and limitations which the claimant placed upon her employment such that it can be said as a matter of law that she has effectively removed herself from the labor market?

The claimant is, as we have said, a registered nurse. She lives in Coraopolis, a suburb of Pittsburgh. Her labor market is clearly the city and at least its western suburbs. Indeed, her employer's place of business is in the city.

The claimant is the mother of four children, the eldest seven years of age. Her husband, apparently a real estate agent, works seven days a week and requires the exclusive use of the family automobile. This requires that the claimant work at locations where public transit is available.

For these causes*fn1 and because the claimant and her husband each attends courses at local colleges, the

[ 100 Pa. Commw. Page 161]

    claimant has limited her hours of work to 7 a.m. to 3 p.m. on Sunday, Monday, Wednesday, Friday and Saturday, as the referee found. She is also available, as she testified, from 11 p.m. to 7 a.m. every day of the week; but the referee made no finding as to the hours just mentioned, probably because the employer had no work for the claimant on the 11 p.m. to 7 a.m. shift and because the referee mistakenly focused his attention entirely upon this employer's needs.

It is apparent that a registered nurse resident in the Pittsburgh area willing to do shift work in private homes accessible by public transit and who is available from 7 a.m. to 3 p.m. five days a week and from 11 p.m. to 7 a.m. every day of the week cannot be said as a matter of law to have effectively removed herself from the Pittsburgh labor market; yet the referee and board failed to inquire whether the local labor market had work for a person in the claimant's circumstances. We must therefore remand the record for further hearing at which that necessary factual inquiry might be made and a new decision rendered.

Order vacated; record remanded for further proceedings consistent with this opinion.

Order

And Now, this 28th day of August, 1986, the order of the Unemployment Compensation Board of Review is vacated; record remanded for further proceedings consistent with this opinion.

Disposition

Vacated and remanded.

[ 100 Pa. Commw. Page 162]

Dissenting Opinion by President Judge Crumlish, Jr.:

I respectfully dissent. Despite Cillo's assertions of her availability for work, the record is replete with an overwhelming list of availability restrictions. These include difficulties in securing transportation, problems in arranging for baby-sitting, conflicts with the class schedules of both Cillo and her husband, as well as with her husband's work schedule, and the personal preferences of Cillo and her husband. While concerns with transportation, child-care problems and educational status may legitimately justify a limitation on availability for work, their cumulative effect is to remove Cillo from the labor force.

In Roman v. Unemployment Compensation Board of Review, 51 Pa. Commonwealth Ct. 44, 413 A.2d 775 (1980), we held that a claimant, whose problems with baby-sitting and her infant daughter's illness discouraged an employment opportunity, had in effect refused employment and was therefore ineligible for benefits. I do not consider Cillo's alleged availability, as constricted by her judgments of convenience and necessity,*fn1 to represent a legitimate attachment to the labor force.

[ 100 Pa. Commw. Page 163]

Consequently, it is my belief that a remand for a factual inquiry into the condition of the local labor market is unnecessary. Accordingly, I would affirm the order of the Board.


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