Frey v. Commonwealth, Unemployment Compensation Board of Review

OpmioN by Judge Rogers, Teresa L. Frey (claimant), appeals from a decision of the Unemployment Compensation Board of Review (Board) that during the seven weeks beginning January 12, 1980 and ending February 23, 1980, she was not able and available for suitable work and was therefore ineligible for benefits pursuant to Section 401(d) of the Unemployment Compensation Law.1 The claimant was last employed as an assistant manager of a retail store in Lancaster, Pennsylvania on December 27, 1979, when her employment ended under circumstances qualifying her for compensation. On her Summary of Interview form filed with the Office of Employment Security (OES), dated January 11, 1980, the claimant wrote, “I am ready and willing to accept work and begin work right away but would have to tell prospective employers I am going to the hospital for surgery.” On the same form she wrote that she was to .see her surgeon .the same day for scheduling the operation. At one of the hearings the claimant testified that she in fact saw her doctor on or about January 11, 1980 and that the surgery— which was dental in nature — was postponed for a year. She did not report this to the compensation authorities until March, 1980 after she was notified that she [407] Rad been found ineligible. Tbe claimant also testified tbat during tbe seven weeks in question sbe was in fact available, looked for work and found one part-time job. Sbe reported to ber local OES during each of tbe seven weeks evidencing ber availability; and wben sbe got tbe part-time work, duly reported tbis fact to OES. Her explanation for failing to report tbe postponement of ber surgery was tbat tbe OES worker to whom sbe bad applied instructed ber only to report wben tbe surgery was definitely scheduled, wbicb inferred indicated official disinterest in tbe postponement of tbis event. Tbe compensation authorities denied compensation because, as they describe what happened, tbe claimant told OES that because of surgery sbe would not be available for work. We believe they erred. Section 401(d)(1) of tbe Unemployment Compensation Law provides tbat compensation shall be payable to an employee who is or becomes unemployed and who: “[I]s able to work and available for suitable work. ...” Each claim weeks stands on a separate and individual basis and tbe claimant must demonstrate ber availability for work during tbat particular week. Humanic v. Unemployment Compensation Board of Review, 55 Pa. Commonwealth Ct. 428, 430, 423 A.2d 64, 65 (1980). Tbe record demonstrates tbat tbe claimant was in fact available, as sbe reported, on each of tbe seven weeks in question and indeed neither tbe referee nor tbe Board of Review found tbat sbe was not in fact available. Rather, the Board of Review’s finding is tbat tbe claimant wben sbe first visited OES “advised . . . tbat sbe would be required to have surgery and would not be available.” It is true tbat she reported tbe prospect of surgery to OES and tbat it might occur in January or Febru-ary_but she also wrote tbat ©be was presently avail [408] able subject to that contingency. At the hearing she proved that she was available and that requires that the decision be in her favor. The Board of Beview twice considered this matter, both times finding against the claimant. In its first decision, the Board wrote “during the period beginning January 11, 1980 the claimant successfully precluded the OES from offering her referrals to suitable work by telling the OES she would not accept any work for two months.” There is nothing in the record supporting this statement; and the Board of Beview properly abandoned it. Of course OES had just the contrary information from the fact that the claimant reported availability each week and indeed reported that she worked during part of the period in question. The claimant, having proved her availability during each of the weeks in question, we reverse the order below and remand for computation of benefits. Order AND Now, this 21st day of October, 1982, the order of the Unemployment Compensation Board of Be-view, dated January 8, 1981, is hereby reversed and the record remanded for the computation of benefits. Footnotes [1] Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §801 (d).