24 Pa. Commw. 474 | Pa. Commw. Ct. | 1976
Opinion by
The facts in this case reveal that Leon B. Matthys (claimant) had been receiving unemployment compensa
The Bureau of Employment Security (Bureau), a referee, and the Unemployment Compensation Board of Review (Board) denied benefits to claimant for a period from the week ending March 29, 1975, through the week ending May 10, 1975,
“Compensation shall be payable to any employe who is or becomes unemployed, and who—
“(d) Is able to work and available for suitable work. . . .”
Our scope of review here is limited to questions of law and, absent fraud, to a determination as to whether the Board’s findings are supported by the evidence. Unemployment Compensation Board of Review v. Pinger, 21 Pa. Commonwealth Ct. 61, 342 A. 2d 781 (1975).
We therefore turn to the record where we note that the Board, in adopting the opinion of the referee, set forth the following findings of fact:
*477 “1. Claimant was last employed by Allegheny Valley Transit, Pittsburgh, PA, as a School Bus Driver, working two hours a day from 2.00 p.m. to 4:00 p.m. at $7.75 a trip, and his last day of work was June 6, 1975.2
“2. Claimant secured this employment as a result of the employer’s ad in the newspaper wherein the employer was advertising for full-time or part-time employees.
“3. Claimant applied for part-time work only because he wished to be available in the mornings in case he was called for an interview with another employer.” (Footnote added.)
It then concluded that “[t]he record reveals that the claimant applied for part-time work only, although the employer had advertised for full-time or part-time employees. Since the claimant restricted his availability by applying for part-time work only, he cannot be considered to have been realistically attached to the labor market and he, therefore, must be disqualified from receiving benefits under the provisions of Section 401(d) of the Law.” We believe that this conclusion represents a fundamental error of law in the Board’s adjudication.
The Board seems to confuse the eligibility provisions of Section 401(d) with those of Section 402(a), 43 P.S. §802(a).
Additionally, we note that the Board has failed to consider that a part-time employment limitation does not, per se, render a claimant ineligible under Section 401 (d). See Myers, supra, and Shay, supra.
Therefore, we issue the following
Order
And Now, this 14th day of May, 1976, the order of the Unemployment Compensation Board of Review relative to the claim of Leon B. Matthys is reversed, and the record is remanded for further proceedings consistent with the above opinion.
. On May 7, 1975, claimant, pursuant to urging from the Bureau, informed his employer of his willingness to accept full-time work and, although no such work was subsequently assigned to claimant, the Bureau has now held him to he eligible for benefits since that date.
. Since the end of the 1975 school year, claimant has been totally unemployed.
. Section 402(a) provides:
“An employe shall be ineligible for compensation for any week—
(a) In which his unemployment is due to failure, without good cause, either to apply for suitable work at such time and in such manner as the department may prescribe, or to accept suitable work when offered to him by the employment office or by any employer, irrespective of whether or not such work is in ‘employment’ as defined in this act: Provided, That such*478 employer notifies the employment office of such offer within seven (7) days after the making thereof.”
. The information necessary to form a factual basis for Section 401(d) adjudications is usually obtained through the Bureau interview or other testimony concerning general limitations on employment. See Graham v. Unemployment Compensation Board of Review, 14 Pa. Commonwealth Ct. 445, 322 A. 2d 807 (1974) ; Patronas v. Unemployment Compensation Board of Review, 5 Pa. Commonwealth Ct. 491, 291 A. 2d 118 (1972). Information necessary to form a factual basis for Section 402(a) adjudications is usually obtained through the claimant’s actions or statements at the time of a refusal to accept tendered employment. See Paisley v. Unemployment Compensation Board of Review, supra.