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NORMA J. KUZMA v. COMMONWEALTH PENNSYLVANIA (04/06/87)

decided: April 6, 1987.

NORMA J. KUZMA, 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 Norma J. Kuzma, No. B-241260.

COUNSEL

Judith Wilson, for petitioner.

Jonathan Zorach, Associate Counsel, with him, Paul E. Baker, Acting Deputy Chief Counsel, for respondent.

Judges MacPhail, Doyle and Barry, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 105 Pa. Commw. Page 190]

Norma J. Kuzma (Claimant) appeals from an order of the Unemployment Compensation Board of Review (Board) which found her ineligible for unemployment compensation benefits under Sections 402(a) and 401(d)(1) of the Unemployment Compensation Law (Law),*fn1 43 P.S. ยงยง 802(a) and 801(d)(1). The Board's finding of ineligibility was based on its conclusions that Claimant had failed to accept an offer of suitable employment and that she was not genuinely and realistically attached to the labor market.

Claimant was employed as a waitress by Country Foods Restaurant (Employer) until October 5, 1984 when she was forced to stop working as a result of injuries she sustained in an automobile accident. Claimant had worked for Employer for approximately one year prior to her accident on a part-time basis. Claimant was released by her doctor to return to work on December 7, 1984, whereupon she reapplied for work with Employer with the request that she be given Tuesday evenings off for personal reasons. Claimant was not rehired, however, and subsequently became a full-time night student in January, 1985, at Mercyhurst College. At the referee's hearing, she expressed her unwillingness to quit school for full-time employment. The referee and

[ 105 Pa. Commw. Page 191]

Board both found that Claimant is only available for part-time work due to her school commitments.*fn2

The referee, following a hearing, concluded that since Employer did not formally offer Claimant any employment, she could not be disqualified under Section 402(a) for refusing an offer of suitable work. The referee did conclude, however, that Claimant is "basically and primarily a student rather than a worker" and, thus, failed to meet the availability requirements of Section 401(d)(1) of the Law. On appeal, the Board issued its own adjudication in which it adopted the referee's fact findings and his conclusion that Claimant was not available for work under Section 401(d)(1). The Board also concluded, however, that Claimant did refuse an offer of suitable work by Employer rendering her ineligible under Section 402(a).

We first turn to the issue of whether Claimant refused an offer of suitable employment in December, 1984. The Board and referee both rendered the following pertinent findings on this issue:

4. The claimant reapplied for work with Country Food Restaurant on December 7, 1984, but requested to be off on Tuesday evenings so that she could continue dancing lessons.

5. During the week ending December 17, 1984, the employer did not rehire the claimant because she told the employer she had applied ...


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