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NORMAN CARR v. COMMONWEALTH PENNSYLVANIA (03/14/75)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: March 14, 1975.

NORMAN CARR, 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 Norman Carr, No. B-120915.

COUNSEL

Harold I. Goodman, with him Laurence M. Lavin, for appellant.

Charles G. Hasson, Assistant Attorney General, with him Sydney Reuben, Assistant Attorney General, and Robert P. Kane, Attorney General, for appellee.

President Judge Bowman and Judges Crumlish, Jr. and Mencer, sitting as a panel of three. Opinion by President Judge Bowman.

Author: Bowman

[ 17 Pa. Commw. Page 634]

Claimant, Norman Carr, had been employed as a cutting machine operator for approximately one year prior to May 11, 1973, although during that time he was subject to frequent layoffs. After the May 11, 1973 layoff, claimant enrolled in an automotive repair vocational

[ 17 Pa. Commw. Page 635]

    training program conducted by Opportunities Industrialization Center, Inc. (OIC). This training lasted almost five months and required regular class attendance five days a week from 9:00 a.m. to 4:00 p.m.

On August 12, 1973, while still in training at OIC, claimant filed an application for unemployment compensation benefits. Thereafter on September 13, 1973, the local Bureau of Employment Security disallowed claimant's application for benefits because he was "attending school full-time during the day." On appeal, the referee, on October 15, 1973, affirmed the Bureau's determination of ineligibility in that claimant was not genuinely and realistically attached to the labor market and not available for work and, therefore, did not comply with Section 401(d) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 801(d) (Supp. 1974-1975).

Claimant then requested and was granted a further hearing to show that he was "in training with the approval of the secretary" and, therefore, not disqualified from receiving benefits under Section 401(d)(1), 43 P.S. § 801(d)(1). After the further hearing, the Unemployment Compensation Board of Review affirmed the earlier October 15, 1973 decision of the referee. This appeal followed.

The law is clear that a full-time student normally is not considered to be realistically and genuinely attached to the labor force and ineligible for unemployment compensation benefits. Woodley v. Unemployment Compensation Board of Review, 13 Pa. Commonwealth Ct. 8, 317 A.2d 897 (1974); Ruben Unemployment Compensation Case, 193 Pa. Superior Ct. 604, 165 A.2d 101 (1960); Majoris Unemployment Compensation Case, 192 Pa. Superior Ct. 269, 162 A.2d 86 (1960). However, claimant here argues that his training program is covered under Section 401(d)(1), 43 P.S. § 801(d)(1), as "training with the approval of the secretary," and since he is otherwise

[ 17 Pa. Commw. Page 636]

    qualified for benefits, he was improperly denied benefits based on Section 401(d).

It is significant that there is no evidence on this record to indicate whether anyone ever considered if the claimant, in his particular training program, had the approval contemplated in the statute. In his summary of interview form, claimant indicated that he was unavailable for work because he was "attending OIC." The Bureau at that time made no determination of whether the claimant's OIC training was approved.*fn1

On appeal, the evidence presented at the further hearing ordered by the Board dealt mainly with the issue of whether the claimant's training was or should have been approved by the Bureau. But instead of remanding to the Bureau to complete the record and determine if claimant's training was approved, the Board affirmed the original referee's decision denying compensation. This procedure was improper.

It is the Bureau that must, in the first instance, determine the approved or non-approved status of claimant in his training program. Since this was not done in the instant case, we must remand to the Board for the purpose of having the Bureau determine whether this claimant, in his particular training program, had the approval necessary to allow compensation pursuant to Section 401(d)(1).

Accordingly, we enter the following

Order

Now, March 14, 1975, this record is remanded to the Unemployment Compensation Board of Review for further proceedings consistent with this opinion.

Disposition

Remanded.


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