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SANDRA L. EVANSON v. COMMONWEALTH PENNSYLVANIA (05/06/82)

decided: May 6, 1982.

SANDRA L. EVANSON, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeal from the Order of the Unemployment Compensation Board of Review in the case of In Re: Claim of Sandra L. Evanson, No. B-187831.

COUNSEL

Jeffrey L. Gilbert, with him Heriberto Hernandez-Pastrana, for petitioner.

James K. Bradley, Associate Counsel, with him Richard L. Cole, Jr., Chief Counsel, for respondent.

President Judge Crumlish, Jr. and Judges Rogers and Blatt, sitting as a panel of three. Opinion by Judge Rogers. This decision was reached prior to the resignation of Judge Mencer. Concurring Opinion by Judge Blatt.

Author: Rogers

[ 66 Pa. Commw. Page 412]

Sandra L. Evanson appeals from an order of the Unemployment Compensation Board of Review denying her benefits because she was not able to work and available for suitable work as required by Section 401(d) of the Unemployment Compensation Law.*fn1

The findings of fact show that the claimant had been employed as a secretary-bookkeeper for more than three years before January 30, 1980, when she was laid off. She received partial unemployment benefits beginning February 23, 1980. In April, 1980 the claimant was accepted as a full-time student at Northampton County Area Community College for the Fall of 1980 semester. The Office of Employment

[ 66 Pa. Commw. Page 413]

Security refused further benefits when the claimant informed it on May 28, 1980 of her scholastic plans for the Fall. The referee affirmed, holding that the claimant restricted her availability for employment by becoming a student. The Board affirmed the referee's action and this appeal followed. We reverse.

The referee and the Board decided that the claimant became unavailable for suitable work in May, 1980 because in the Fall she was going to go to college.

The unemployment compensation authorities did not have the benefit of the Supreme Court's holding in Penn Hills School District v. Unemployment Compensation Board of Review, 496 Pa. 620, 437 A.2d 1213 (1981), that the fact alone that the claimant's availability appears to be for a short term is not disqualifying under Section 401(d). In Penn Hills, the claimant, a school bus driver, missed seven nonconsecutive days of work during one month because of severe weather conditions. The Supreme Court upheld a grant of benefits stating:

The General Assembly could have established a general disqualification based upon the length of the lay-off or the employee's assurance of returning to work -- it did not and the courts cannot. To permit such a disqualification to stand would be to erect an irrebuttable presumption that the short-term unemployed expecting to return to work with the same employer are never available for suitable work. Given the existence of many types of short-term temporary employment, especially in a large ...


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