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THOMAS J. BIEMESDERFER v. COMMONWEALTH PENNSYLVANIA (02/04/83)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: February 4, 1983.

THOMAS J. BIEMESDERFER, 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 Thomas J. Biemesderfer, No. B-183364-B.

COUNSEL

Michael Goldberg, with him Marian E. Frankston, for petitioner.

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

Judges Blatt, Williams, Jr. and Craig, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 71 Pa. Commw. Page 577]

The petitioner, Thomas J. Biemesderfer, argues that the Unemployment Compensation Board of Review (Board) erred in determining that his status as a part-time student made him unavailable for work within the purview of Section 401(d) of the Unemployment Compensation Law (Act), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. ยง 801(d). The Board found that "the claimant is primarily a student who also works."

[ 71 Pa. Commw. Page 578]

Our review here is limited to questions of law and, absent fraud, to a determination of whether or not the Board's findings are supported in the record without a capricious disregard of competent evidence. Goodwin v. Unemployment Compensation Board of Review, 32 Pa. Commonwealth Ct. 285, 378 A.2d 1308 (1977).

Regardless of a claimant's status as student or non-student, of course, any applicant has the burden of establishing the fact that he is able and available for work. Wincek v. Unemployment Compensation Board of Review, 64 Pa. Commonwealth Ct. 201, 439 A.2d 890 (1982).

Here, the claimant had been employed full-time for two and a quarter years by the Trojan Yacht Company. He testified that, upon being involuntarily separated due to a lack of work, he actively sought other employment,*fn1 and enrolled in school on a part-time basis.*fn2 As our courts have recognized, "a claimant should not be penalized merely because he has the commendable desire, in keeping with the great American tradition, to further his education by attending classes during hours which do not interfere with his job". Wiley v. Unemployment Compensation Board of Review, 195 Pa. Superior Ct. 256, 259, 171 A.2d 810, 812 (1961). Rather, the relevant issue is whether or not the claimant's limitation on his availability effectively removes him from his local labor market.

[ 71 Pa. Commw. Page 579]

    eligibility), the legislature, and not the courts, must so rule. Breen v. Unemployment Compensation Board of Review, 71 Pa. Commonwealth Ct. 17, A.2d (1983); Evanson v. Unemployment Compensation Board of Review, 66 Pa. Commonwealth Ct. 411, 444 A.2d 1317 (1982).

We will reverse the order of the Board.

Order

And Now, this 4th day of February, 1983, the order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby reversed and the matter remanded for the computation of benefits.

Disposition

Reversed and remanded.


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