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LEON PLZYBYLOWICZ v. COMMONWEALTH PENNSYLVANIA (09/02/88)

decided: September 2, 1988.

LEON PLZYBYLOWICZ, 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 Leon Plzybylowicz, No. B-257926.

COUNSEL

Thomas F. McDevitt, Thomas F. McDevitt, P.C., for petitioner.

Gary L. Kelley, Assistant Counsel, with him, Clifford F. Blaze, Deputy Chief Counsel, for respondent.

Judges Barry and Smith, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Smith.

Author: Smith

[ 119 Pa. Commw. Page 256]

Claimant, Leon Plzybylowicz, appeals from a decision of the Unemployment Compensation Board of Review (Board) which denied benefits to Claimant under Section 401(d)(1) of the Pennsylvania Unemployment Compensation Law (Law)*fn1 and further assessed a fault

[ 119 Pa. Commw. Page 257]

    overpayment against him under Section 804(a) of the Law.*fn2 Claimant challenges the Board's determination that Claimant was not able and available for work in any labor market during the weeks at issue. The Board's order is affirmed.

Claimant was last employed by the United States Steel Corporation (USX) on July 31, 1986 when he was separated from work due to a company lockout of employees. Claimant applied for benefits and was found eligible for weeks ending August 23, 1986 through January 10, 1987. The Board found that Claimant's living arrangements had changed during his period of unemployment in that Claimant resided in Altoona from August 15, 1986 through January 12, 1987 and planned to relocate to Altoona, but if recalled by USX he would return to his father's residence in Langhorne. The Board further found that Claimant failed to notify the Office of Employment Security (OES) of the change in residency; that he intended to defraud the OES; and that Claimant was not able and available for work in any labor market during the period in question.

This Court's scope of review in an unemployment compensation case is limited to a determination of whether findings of fact are supported by substantial evidence, whether an error of law was committed, or whether any of claimant's constitutional rights have been violated. Estate of McGovern v. State Employees' Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986).

Claimant argues that the Board's decision is not supported by the evidence in that Claimant was unemployed through no fault of his own and was at all times ready and available to return to the Langhorne labor market. Claimant stated that if recalled while visiting his family in Altoona, he would be notified by his father

[ 119 Pa. Commw. Page 258]

    and would promptly report to work. N.T., p. 7. The Board, nonetheless, determined that when Claimant removed himself from his labor market, he created a new labor market and that the removal was not for purposes of seeking other work. The Board in its findings of fact indicated that Claimant was ...


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