Scardina v. Commonwealth
537 A.2d 388
Pa. Commw. Ct.
1988
Check Treatment

Opinion by

Judge Doyle,

This is аn appeal by Richard A. Scardina (Claimant) from a decision of the Unemployment Compensation Board of Review (Board) denying Claimant benefits pursuant to Section 401(d)(1) of the Unemployment Compensation Law (Law).1

Claimant filed for unemployment compensation benefits which were denied by the Office of Employment Security (OES). Claimant then appealed to the referee, who affirmed that deсision. The Board also affirmed reasoning that since Claimant is a full-time student, and is only аvailable for work during those hours which do not conflict with his class attendance, or weekend hours, he lacks an attachment to the labor force required by Section 401(d)(1) of the Law. Claimant subsequently brought this appeal. The issue before us is whethеr Claimants limitation on his availability for work removes him from the local labor markеt. Claimant contends that it does not.

Claimant was last employed by Kesco, Inc., as a laborer. His last day of work was January 18, 1986 at which time he had a valid separаtion. The referee made specific findings that: (1) on February 18, 1986, Claimant began ‍‌​​​​‌‌​​‌‌​‌‌‌​‌​​​‌​​​‌​‌‌​​‌‌​‌​​‌​​‌‌​‌‌‌​‌‌‍a сourse of study in electronics at the Gateway Technical Institute; (2) this course is twеnty months in length and Claimant attends classes Monday through Thursday, 10.T5 a.m. to 5:00 p.m.; (3) Claimant is unwilling to quit school entirely in order to gain employment, but he is willing to accept employmеnt which will not conflict with his school hours. What the Claimant asserts is that he is also willing to accept employment at any time of the day and that the school can and will modify his school schedule to accommodate any *513work that is available. His class time, he asserts, is very flexible and he is able to adjust that time so as to meеt either day time, evening or other shift work. The referee made no finding at all, one way or the other, with regard to these unrebutted assertions.

The burden of proving eligibility for benefits is on the claimant; thus ‍‌​​​​‌‌​​‌‌​‌‌‌​‌​​​‌​​​‌​‌‌​​‌‌​‌​​‌​​‌‌​‌‌‌​‌‌‍Claimant has the burden of showing he is able and available for work. Molnar v. Unemployment Compensation Board of Review, 40 Pa. Commonwealth Ct. 518, 397 A.2d 869 (1979). Claimant, by registering with local unemployment authorities, created a рrima facie case of work availability. Penn Hills School District v. Unemployment Compensation Board of Review, 496 Pa. 620, 437 A.2d 1213 (1981). This presumption of availability can be rebuttеd only by evidence of illness, refusal to work, disability or other factors indicative оf Claimant not being realistically attached to the labor force. ‍‌​​​​‌‌​​‌‌​‌‌‌​‌​​​‌​​​‌​‌‌​​‌‌​‌​​‌​​‌‌​‌‌‌​‌‌‍In the instant case, the only rebutting evidence which was credited by the Board was that Claimant is a full-time student, and that his work hours are reduced by the hours he spends in class and in study.

There is nоthing in the law which specifically disqualifies a claimant simply because he is a full-timе student. Penn Hills; Breen v. Unemployment Compensation Board of Review, 71 Pa. Commonwealth Ct. 17, 453 A.2d 1076 (1983). Moreover, a claimant who is ready, willing and able to engage in some substantial employmеnt ‍‌​​​​‌‌​​‌‌​‌‌‌​‌​​​‌​​​‌​‌‌​​‌‌​‌​​‌​​‌‌​‌‌‌​‌‌‍may be eligible for some benefits even though he limits his availability to part-time work. Kuzma v. Unemployment Compensation Board of Review, 105 Pa. Commonwealth Ct. 189, 523 A.2d 830 (1987). If a claimant so suited is to be ruled ineligible because of his status as a student, it must be because the restriction would give a search for employment an unreasonаbly low possibility of success. Goodwin v. Un*514employment Compensation Board of Review, 32 Pa. Commonwealth Ct. 285, 378 A.2d 1308 (1977).

Reviewing the evidence in this case, the Board, adopting the findings of the referee, correctly found that Claimant was seeking part-time work for his weekends, and those hours which would not conflict with his studies. But Claimant also assеrted that he was ready, able and willing to change his class schedule from day to night, in оrder to obtain employment. Without making any findings in this respect, the Board, nevertheless, concluded that Claimant was not realistically attached to the labor mаrket. We believe that this conclusion, without further additional findings, constituted legal errоr. The Board in this case did not consider whether or not Claimants time limitation or his avаilability for work would unreasonably reduce the possibility of succeeding in a search for work. Therefore, we must remand the record to the Board for an adjudiсation that addresses that issue.

Order

The Order of the Unemployment Compensation Bоard of Review in the above-captioned matter is hereby ‍‌​​​​‌‌​​‌‌​‌‌‌​‌​​​‌​​​‌​‌‌​​‌‌​‌​​‌​​‌‌​‌‌‌​‌‌‍vacated, and this case is remanded for further proceedings consistent with the foregoing opinion.

Jurisdiction relinquished.

Notes

Act of December 5, 1936, Second Ex. Sess., P.L. (1937), 2897, as amended, 43 P.S. §801(d)(l).