Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Ted P. Breen, No. B-191741.
John J. Robinson, Jr., for petitioner.
Charles D. Donahue, Associate Counsel, with him Richard L. Cole, Jr., Chief Counsel, for respondent.
Judges Rogers, Williams, Jr. and Craig, sitting as a panel of three. Opinion by Judge Craig. Concurring Opinion by Judge Rogers.
Ted P. Breen appeals from two orders of the Unemployment Compensation Board of Review which, affirming the referee's decision, denied the claimant benefits on the basis of a conclusion that he was not available for work*fn1 and found him liable for a fault overpayment.*fn2
The facts of this case are not in dispute. The claimant has attended college as a part-time or full-time student since September 1978. When he applied for benefits, he lived at home with his parents, had no dependents, and had never worked full-time when in school.
For less than one month of his 1980 summer recess, the claimant worked part-time as a baker's assistant. When that job ended July 5, 1980, the claimant applied for benefits, leaving blank two questions on the benefits application form which would have indicated whether he attended or planned to attend school. He thus obtained $510.00 in unemployment benefits over a ten-week period. In September, he informed the Office of Employment Security that he had returned to school, having received a loan from his father to meet tuition payments.
The claimant contends that when he submitted his application for benefits in July he was available for work, because at that time he did not intend to resume his studies in the fall, having insufficient funds to meet the cost of his education. Moreover, the claimant argues that he should not be held liable for a fault overpayment because he merely forgot to complete the form and informed the interviewer orally of his academic history.
We must decide (1) whether substantial evidence supports the board's finding that the claimant is not available for full-time work because of student status, and (2) whether the claimant is liable for a fault overpayment.
The referee's decision, as adopted by the board, held that the claimant was not available for work because he was "primarily a student rather than a worker being basically committed to the work force," noting that the board and the courts have ...