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DIANE M. WAGNER v. COMMONWEALTH PENNSYLVANIA (06/03/83)

decided: June 3, 1983.

DIANE M. WAGNER, 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 Diana M. Wagner, No. B-188547.

COUNSEL

Mineko S. Avery, for petitioner.

Charles Donahue, Associate Counsel, with him Richard L. Cole, Jr., Chief Counsel, for respondent.

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

Author: Williams

[ 74 Pa. Commw. Page 594]

Diane M. Wagner (claimant)*fn1 has appealed from an order of the Unemployment Compensation Board of Review (Board) denying her benefits on the ground that she was "primarily a student." The Board concluded that, because the claimant was enrolled as a full-time student, she was not realistically attached to the labor market; and that, hence, she was ineligible for benefits by force of Section 401(d) of the Unemployment Compensation Law (Law).*fn2

Until May 22, 1980, the claimant was employed as a nurse's aide at St. Clair Hospital in Pittsburgh, Pennsylvania. She had been so employed for almost three years. In February of 1980, about three months before her last day at work, the claimant enrolled at a Pittsburgh technical school in a full-time, one year course to prepare for becoming a licensed practical nurse. She attended school from 7:00 A.M. until 3:00 P.M.,

[ 74 Pa. Commw. Page 595]

Monday through Friday; and also maintained her regular work schedule at St. Clair Hospital.*fn3 According to one account given by the claimant, her work shift at the hospital was from 4:00 P.M. until 11:00 P.M.*fn4 On May 22, 1980, the claimant was discharged from her employment at the hospital, allegedly because of some complaint about her attitude. The discharge did not disrupt her pursuit of the nursing course at the technical school.

On May 25, 1980, the claimant applied to the Office of Employment Security (OES) for unemployment compensation. In her interview with OES, the claimant stated that she did not know why she was discharged from St. Clair Hospital. She also stated that she was unwilling to disrupt her class schedule for "full-time" work, but that she was available for work between 4:00 P.M. and 10:00 P.M. or between 4:00 P.M. and 11:00 P.M. She expressed no limitation as to the salary or type of work she would accept.

The claimant's application for benefits was denied by OES, as to the claim weeks ending May 31, June 7, and June 14, 1980. OES determined that she had been discharged from the hospital for willful misconduct under Section 402(e) of the Law,*fn5 and also that her

[ 74 Pa. Commw. Page 596]

    school situation rendered her ineligible pursuant to ...


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