Evanson v. Commonwealth, Unemployment Compensation Board of Review

Concurring Opinion by

Judge Bbatt:

Although I agree with the majority’s conclusion, I do not believe that our Supreme Court’s decision in Penn Hills School District v. Unemployment Compensation Board of Review, 496 Pa. 620, 437 A.2d 1213 (1981), diminishes or destroys the authority of those cases in which we held, as summarized by the majority, “that a full-time student who intends to return to school in the fall is rebuttably presumed to be unavailable for work during the summer. (Emphasis added.) See Mirkin v. Unemployment Compensation Board of Review, 59 Pa. Commonwealth Ct. 537, 430 A.2d 384 (1981); Reardon v. Unemployment Compensation Board of Review, 30 Pa. Commonwealth Ct. 139, 373 A.2d 146 (1977).

Penn Hills forbids only the erection of an “irrebuttable presumption that the short term unemployed expecting to return to work are never available for suitable work.” Id. at , 437 A.2d at 1218 (emphasis added). I would agree with the Board, therefore, that the “full-time” student cases have not been abrogated by Penn Hills.

Here, however, the claimant had not previously been a full-time student, but rather was a member of the work-force. The Board, therefore, erred as a matter of law in applying the full-time student cases in this situation. And, inasmuch as the findings below indicate that this claimant established1 that she was *416available for suitable work up until2 ber full-time studies began, I would reverse tbe Board’s order.

The Board adopted the referee’s factual finding that the claimant was “seeking employment from two different sources which would be full-time now thru August. . . .” Also, the majority noted that “the claimant testified that she would accept work at night, *416and was willing to work as a secretary, bookkeeper, cashier, convenience store clerk, or dishwasher . . . [i]ndeed the claimant had already been interviewed for a summer bookkeeping position.”

Here, where the claimant had previously been, not a full-time student but rather a full-time member of the work-force, I believe that the Board was premature, under Penn Hills, in anticipating that she would not be available for suitable work and in speculating that she actually would enter school.