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

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." ...


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