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MARIANNE N. ETTORRE v. COMMONWEALTH PENNSYLVANIA (04/07/80)

decided: April 7, 1980.

MARIANNE N. ETTORRE, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Marianne N. Ettorre, No. B-167222.

COUNSEL

Kevin B. Curley, with him Paul J. Burgoyne, for petitioner.

Charles G. Hasson, Assistant Attorney General, with him Richard Wagner, Chief Counsel, and Edward G. Biester, Jr., Attorney General, for respondent.

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

Author: Rogers

[ 50 Pa. Commw. Page 316]

Marianne N. Ettorre has appealed from an order of the Unemployment Compensation Board of Review (Board) affirming a referee's determination that Ms. Ettorre was ineligible for unemployment compensation benefits because she was not available for suitable work as required under 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. ยง 801(d).

The issue in this case is whether Ms. Ettorre was primarily a student who also worked, or a worker who also attended school. The referee found that Ms. Ettorre attended college on a part-time basis and was completing her final year. The referee also stated in finding of fact number 3 that Ms. Ettorre "is and has been primarily a student and during the period involved in this appeal was working on a part-time basis while attending college." The referee concluded that Ms. Ettorre was primarily a student and therefore not available for work.*fn1

[ 50 Pa. Commw. Page 317]

Ms. Ettorre claims that the referee's finding of fact number 3 must be ignored because a determination of whether or not a person is primarily a student is not a proper finding of fact but rather is a conclusion of law. She further claims that once finding of fact number 3 is ignored, there is not substantial evidence to support the conclusion that she was primarily a student.

We agree that that part of the referee's finding of fact number 3 which states that Ms. Ettorre "is and has been primarily a student" must be ignored, since whether or not a person is primarily a student is a legal issue and not a real factual finding. In Re: Claim of James Wright, 25 Pa. Commonwealth Ct. 522, 524-25, 360 A.2d 842, 844-45 (1976).

The remainder of the finding of fact number 3, to the effect that Ms. Ettorre was working part time while attending college remains intact and that portion of the finding and the other findings of fact made by the referee are supported by substantial evidence, to wit, Ms. Ettorre's own testimony. This testimony reveals that Ms. Ettorre had been attending college continuously since her graduation from high school and that she had worked throughout her college career.

A rebuttable presumption exists that a student is not available for work so as to qualify for unemployment benefits. Reardon v. Unemployment Compensation Board of Review, 30 Pa. Commonwealth Ct. 139, 373 A.2d 146 (1977). The presumption is rebutted if the claimant proves that her primary purpose is to work, rather than to obtain an education while working to pay for that education. In making this determination, ...


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