Appeal from the Order of the Unemployment Compensation Board of Review in case of In re: Claim of William D. Sickafuse, No. B-194949.
Frank J. Piatek, for petitioner.
Francine Ostrovsky, Associate Counsel, with her Richard L. Cole, Jr., Chief Counsel, for respondent.
Judges Rogers, Williams, Jr. and Doyle, sitting as a panel of three. Opinion by Judge Doyle. Judge Williams, Jr. dissents.
[ 76 Pa. Commw. Page 610]
This is an appeal by William D. Sickafuse (Claimant) from the decision and order of the Unemployment Compensation Board of Review (Board) affirming the decision of a referee to deny unemployment compensation benefits pursuant to Section 401(d)(1) of the Pennsylvania Unemployment Compensation Law*fn1 (Law). For the reasons which follow, we affirm the order of the Board.
Claimant had been employed on a full-time basis as a stock worker for Haney's Furniture (Employer) for approximately ten months when, in July of 1980, his working hours were reduced to twenty hours per week. This is the work schedule he currently maintains. After filing an application for benefits effective July 20, 1980, Claimant enrolled for the fall of 1980 term at Grove City College. Following a hearing, the referee determined that Claimant was not available for employment and therefore found him to be ineligible for compensation benefits.*fn2 Claimant did not take any appeal from this determination. He did, however, reopen his claim for benefits following the completion of the fall term on December 19, 1980. A hearing was held on this later claim on March 10, 1981, while Claimant was enrolled at Grove City College for the spring 1981 semester. When the referee again determined that Claimant was ineligible for benefits, he appealed to the Board. After the Board adopted the decision of the referee, Claimant appealed to this Court.
To reach the conclusion that Claimant was ineligible for benefits, the referee relied upon a rule of law,
[ 76 Pa. Commw. Page 611]
set forth in Reardon v. Unemployment Compensation Board of Review, 30 Pa. Commonwealth Ct. 139, 373 A.2d 146 (1977), which expressed a rebuttable presumption that a full-time student is unavailable for work. As a result of our Supreme Court's decision in Penn Hills School District v. Unemployment Compensation Board of Review,*fn3 however, the authority for this proposition of law has been overruled. Breen v. Unemployment Compensation Board of Review, 71 Pa. Commonwealth Ct. 17, 453 A.2d 1076 (1983); see Evanson v. Unemployment Compensation Board of Review, 66 Pa. Commonwealth Ct. 411, 444 A.2d 1317 (1982). Therefore, our task in the matter sub judice is to apply the traditional scope of review to determine if the Board's finding that Claimant is unavailable for work can be sustained without a capricious disregard of competent evidence, Lake v. Unemployment Compensation Board of Review, 48 Pa. Commonwealth Ct. 138, 409 A.2d 126 (1979), while avoiding reliance upon the negative presumption, Breen.
Our review of the record reveals that after the Employer reduced Claimant's work hours to twenty hours per week in July of 1980, Claimant matriculated as a full-time college student. Claimant had completed one semester, and had begun a second semester, while maintaining his part-time employment. We also note that the Board did not consider Claimant's employment search indicative of an individual who was actually available for work. While there is no quantitative measure to prove good faith, the Board concluded that Claimant's three undocumented employment contacts over a several month period did not demonstrate a good faith effort to secure employment. Finally, Claimant's spouse is employed and contributing
[ 76 Pa. Commw. Page 612]
to the support of the family. Although this fact does not directly affect Claimant's eligibility for benefits, it does tend to negate the inference that Claimant would be required by necessity to leave school and return to full-time employment in order to support his family. Following our careful review of the testimony, we conclude that the Board did not capriciously disregard evidence. Furthermore, we are convinced that there is ...