Opinion
Argued September 6, 1973
October 31, 1973.
Unemployment compensation — Scope of appellate review — Error of law — Findings of fact — Sufficient evidence — Credibility — Weight of the evidence — Inferences — Substantial evidence — Available for work — Unemployment Compensation Law, Act 1936, December 5, P. L. (1937) 2897 — Labor force — Registration for work — Medical evidence — Presumption — Prima facie evidence — Words and phrases — Willful misconduct — Pregnancy — Legislative intent.
1. In an unemployment compensation case, review by the Commonwealth Court of Pennsylvania is confined to questions of law and, in the absence of fraud, a determination of whether the findings of the Unemployment Compensation Board of Review are supported by the evidence, leaving to the Board all questions of the credibility and weight of the evidence and giving to the party prevailing below the benefit of all reasonable and logical inferences to be drawn from the evidence. [459-60]
2. In an unemployment compensation case, findings which are supported by substantial evidence are binding upon a reviewing court. [460]
3. A claimant to be available for work so as to qualify for benefits under the Unemployment Compensation Law, Act 1936, December 5, P. L. (1937) 2897, must be currently attached to the labor force, and a claimant is so available if able to do some kind of work which can reasonably be sought in the vicinity of the claimant's residence. [460]
4. Proof of registration for unemployment compensation benefits, which is tantamount to registering for work, coupled with a certification of availability for work and ability to work by the claimant's physician establishes a prima facie presumption of availability required by the Unemployment Compensation Law, Act 1936, December 5, P. L. (1937) 2897, as a prerequisite for the receipt of benefits. [460-1]
5. Willful misconduct so as to render an employe ineligible for unemployment compensation benefits is an act of wanton or willful disregard of the employer's interest, a deliberate violation of rules, a disregard of standards which the employer has a right to expect, or negligence such as to manifest culpability, wrongful intent or evil design, or show an intentional and substantial disregard of the employer's interest or the employe's duties and obligations to the employer. [461]
6. An employe's pregnancy cannot be construed as willful misconduct so as to preclude receipt of unemployment compensation benefits. [461]
7. The fact that provisions of the Unemployment Compensation Law, Act 1936, December 5, P. L. (1937) 2897, regulate benefits payable to persons unemployed because of pregnancy indicates that the Legislature intended that an employe is not to be totally excluded from receipt of benefits because she is pregnant. [461-2]
Argued September 6, 1973, before President Judge BOWMAN and Judges CRUMLISH, JR., KRAMER, WILKINSON, JR., MENCER, ROGERS and BLATT.
Appeal, No. 1256 C.D. 1972, from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Sheila R. Mellott, No. B-115019.
Application to Bureau of Employment Security for unemployment compensation benefits. Benefits awarded. Decision of referee reversing award appealed by claimant to Unemployment Compensation Board of Review. Decision reversed and benefits reinstated. Employer appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Jay L. Benedict, for appellant.
Sydney Reuben, Assistant Attorney General, with him Israel Packel, Attorney General, for appellee.
This is an appeal filed by Dr. James Shira from an order of the Unemployment Compensation Board of Review (Board) awarding compensation to Sheila R. Mellott.
Mrs. Mellott had been employed by Dr. Shira as a dental technician for approximately three and one-half years. This employment was terminated on June 11, 1971, at which time she was in her sixth month of pregnancy.
Mrs. Mellott, on November 7, 1971, more than thirty days after the birth of her child, applied for unemployment compensation benefits and was found to be eligible by the Bureau of Employment Security. Dr. Shira appealed this determination. An Unemployment Compensation referee was assigned the case and after a hearing, the referee concluded that Mrs. Mellott was not eligible for benefits because at the time of her application she was not able to work and available for work as required by Section 401(d) of the Unemployment Compensation Act, Act of December 5, 1936, P. L. (1937) 2897, as amended, 43 P. S. § 801(d).
Mrs. Mellott appealed to the Board, and on November 20, 1972, the decision and order of the Board reversed the referee and awarded her benefits. This appeal followed and we affirm.
Dr. Shira argues, inter alia, that the Board erred in its findings of fact. Our scope of review in unemployment cases is confined to questions of law and, absent fraud, a determination as to whether the Board's findings are supported by the evidence. Questions of credibility and the weight to be given evidence are for the Board. Furthermore, the party victorious below is to be given the benefit of any inferences which can reasonably and logically be drawn from the evidence. See James v. Unemployment Compensation Board of Review, 6 Pa. Commw. 489, 296 A.2d 288 (1972).
The sole issue before this Court in regard to the Board's findings is whether they are supported by the evidence. The findings which Dr. Shira contests are the following: "3. Claimant was willing and able to continue her employment even though she was in her sixth month of pregnancy." and "4. Claimant is able and available for work as certified to by her physician." Both these findings are supported by substantial evidence in the record and are therefore binding upon this Court. Kanouse v. Unemployment Compensation Board of Review, 9 Pa. Commw. 188, 305 A.2d 782 (1973).
Dr. Shira also argues that the Board erred in concluding that Mrs. Mellott was genuinely and realistically attached to the labor force, and therefore "able to work and available for work" as required by Section 401(d) of the Act, 43 P. S. § 801 (d). A claimant, to be available for work, must actually be currently attached to the labor force. See Hunt v. Unemployment Compensation Board of Review, 8 Pa. Commw. 577, 302 A.2d 866 (1973). Under Section 401(d) it is sufficient if a claimant is able to do some kind of work and there is a reasonable opportunity for one to obtain work in the vicinity of his habitation. Quiggle Unemployment Compensation Case, 172 Pa. Super. 430, 94 A.2d 367 (1953). We find that Mrs. Mellott was able to work and available for work under this test.
It is true that Mrs. Mellott testified that she had not really called anyone concerning a job; however, she testified that she had asked other dental assistants if they knew of any openings, and that this was the usual procedure for securing jobs of this type.
In addition, Mrs. Mellott's filing of her claim for benefits was tantamount to registering for work. This registration, coupled with her doctor's certification of availability for work, established a prima facie presumption of availability which was not rebutted by Dr. Shira. See Pulver Unemployment Compensation Case, 207 Pa. Super. 112, 215 A.2d 269 (1965).
Therefore, the Board was correct in concluding that Mrs. Mellott satisfied the availability requirement of Section 401(d).
Finally, Dr. Shira urges this Court to deny compensation to Mrs. Mellott by a finding, contrary to both the referee and the Board, that her pregnancy was wilful misconduct under Section 402(e), Act of December 5, 1936, 43 P. S. § 802(e). This we cannot do.
Although Section 402(e) of the Act does not define the term "wilful misconduct," the courts have established a workable definition. In Harmer Unemployment Compensation Case, 206 Pa. Super. 270, 272, 213 A.2d 221, 223 (1965), wilful misconduct was defined as: "[A] n act of wanton or wilful disregard of the employer's interest, a deliberate violation of the employer's rules, a disregard of standards of behavior which the employer has the right to expect of his employee, or negligence in such degree or recurrence as to manifest culpability, wrongful intent, or evil design, or show an intentional and substantial disregard of the employer's interest or of the employee's duties and obligations to the employer." We hold that an employe's pregnancy cannot be construed as wilful misconduct as this term has been defined by the courts. Sections 401(d) and 402(f) of the Act, in specifically regulating when employes discharged or laid off because of pregnancy can collect benefits, make it clear that the Legislature intended that such employes were entitled to compensation, and were not to be totally excluded as a consequence of pregnancy.
For the above reasons the order of the Board must be affirmed.
Order affirmed.