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FREDERICK G. WOODLEY v. COMMONWEALTH PENNSYLVANIA (04/03/74)

decided: April 3, 1974.

FREDERICK G. WOODLEY, APPELLANT,
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, APPELLEE



Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Frederick G. Woodley, No. B-118074.

COUNSEL

Richard F. Stevens, with him Butz, Hudders & Tallman, for appellant.

Sydney Reuben, Assistant Attorney General, with him Israel Packel, Attorney General, for appellee.

Judges Kramer, Rogers and Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 13 Pa. Commw. Page 9]

Frederick G. Woodley (claimant), then nineteen years of age, was employed in Lehigh County as a welder's helper from sometime in June 1972 until December 20, 1972, when he was laid off because of a lack of work. Sometime in January 1973, being unable to find work in Lehigh County, he enrolled in the Hobart School of Welding Technology in Troy, Ohio. He attended classes for seven hours a day, five days a week, but testified that, if necessary, he could change his schedule so as to take his classes at night.

While still attending school, the claimant filed an inter-state claim for unemployment compensation benefits in Ohio, and the claim was forwarded to Pennsylvania

[ 13 Pa. Commw. Page 10]

    for action. Subsequently, both a referee and the Unemployment Compensation Board of Review (Board) determined that, as a full-time student, he was not available for work as required by Section 401(d) of the Unemployment Compensation Law, Act of Dec. 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 801(d). He was denied benefits and he has appealed to this Court for a reversal of the Board's decision.

It is clear that availability for work requires a claimant to be actually and currently attached to the labor force. Majoris Unemployment Compensation Case, 192 Pa. Superior Ct. 269, 162 A.2d 86 (1960). It is also a normally reasonable presumption that a full-time student is not available for work. This is not an irrebuttable presumption, of course. It might be possible that a claimant, despite his status as a student, could still be realistically and genuinely attached to the labor market. In this case, however, we do not believe that the presumption has been rebutted sufficiently.

Rubin Unemployment Compensation Case, 193 Pa. Superior Ct. 604, 165 A.2d 101 (1960) and Majoris, supra, were based on facts similar to those in the case at hand. In each of these cases the claimant was a full-time day student who offered to switch to night classes, if necessary, to obtain a job. The Superior Court affirmed the Board's denial of benefits in each case, noting that the willingness to shift from day to evening classes is not sufficient to remove the conditions which had been placed on availability, especially in view of the fact that many jobs require changing shifts. As was stated in Majoris, supra : "While claimant indicated that he was willing to shift his day classes to evening classes had work been offered to work the regular day shift hours, a willingness to be

[ 13 Pa. Commw. Page 11]

    employed conditionally does not meet the test of availability. The determination of availability is largely a question of fact for the Board." ...


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