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STEVEN L. KISSINGER v. COMMONWEALTH PENNSYLVANIA (04/21/80)

decided: April 21, 1980.

STEVEN L. KISSINGER, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeals from the Orders of the Unemployment Compensation Board of Review in cases of In Re: Claims of Steven L. Kissinger, Nos. B-168373, B-168374, B-168375 and B-168376.

COUNSEL

John E. Feather, Jr., with him Gregory Paulson, for petitioner.

Gary Marini, with him James Bradley, Assistant Attorneys General, Richard Wagner, Chief Counsel and Edward G. Biester, Jr., Attorney General, for respondent.

Judges Mencer, Blatt and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 50 Pa. Commw. Page 625]

Steven L. Kissinger (Claimant) appeals from orders of the Unemployment Compensation Board of Review (Board) which affirmed the decision of the referee denying Claimant benefits under Section 401(d)

[ 50 Pa. Commw. Page 626]

    of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., (1937) 2897, as amended, 43 P.S. § 801(d)*fn1 and finding him liable for a "fault" overpayment under Section 804(a) of the Law. 43 P.S. § 874(a).*fn2 We affirm.

The facts of the case are not in dispute. Claimant was honorably discharged from the United States Army in September of 1976. Shortly thereafter he applied for and began to receive benefits under the Law. In January of 1977, Claimant, who had been unable to find work, began full time studies at Harrisburg Area Community College (HACC). In April of 1978, the Unemployment Compensation Bureau (Bureau) learned that Claimant had been a full-time student since January of 1977. Benefits were duly suspended and Claimant was found liable for a "fault" overpayment on benefits received from January 15, 1977 to June 3, 1978.*fn3

The issues presented are 1) whether the Board's finding that Claimant is a full-time student and unavailable for full-time work is supported by substantial evidence and 2) whether Claimant is liable for a "fault" overpayment due to his failure to inform the Bureau of his status as a student.

[ 50 Pa. Commw. Page 627]

Claimant first argues that he is essentially a worker who attends school and that his primary purpose is to obtain full-time employment. He avers that he would have left school at any time to take an offer of full-time employment.

There is a rebuttable presumption that a full-time student is not available for work and, therefore, not genuinely attached to the labor market. Woodley v. Unemployment Compensation Board of Review, 13 Pa. Commonwealth Ct. 8, 317 A.2d 897 (1974). Claimant relies on our decision in Unemployment Compensation Board of Review v. Siene, 24 Pa. Commonwealth Ct. 430, 357 A.2d 228 (1976) for ...


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