Walters v. Commonwealth, Unemployment Compensation Board of Review

Concurring Opinion by

Judge Rogers:

I agree that the claimant is eligible for unemployment compensation benefits. I do not agree that the court made rule to the effect that unemployed students are presumed to be ineligible for benefits is any longer valid. As we noted in Evanson v. Unemployment Compensation Board of Review, 66 Pa. Commonwealth Ct. 411, 444 A.2d 1317 (1982), the recent opinion of the Supreme Court in Penn Hills School District v. Unemployment Compensation Board of Review, 496 Pa. 620, 437 A.2d 1213 (1981) disapproves of the application of exceptions to eligibility which have no clear and explicit foundation in the statutes. The burden placed on students to overcome a presumption of ineligibility is such an exception.

The majority correctly says that Pennsylvania courts have placed a burden of proof on unemployment compensation claimants who are also full-time students not imposed on other claimants — that of requiring full-time students to establish their availability for work within the meaning of Section 401(d) of the Act by demonstrating a substantial previous history of full-time work, good faith efforts to obtain unconditional full-time employment, and economic needs related to family support obligations. See Ettorre v. Unemployment Compensation Board of Review, 50 Pa. Commonwealth Ct. 316, 413 A.2d 6 (1980); Reardon v. Unemployment Compensation Board of Review, 30 Pa. Commonwealth Ct. 139, 143, 373 A.2d 146, 149 (1977) (authorities collected).

*81The first two of these factors — previous work history and good faith efforts to obtain work — merely duplicate in an imprecise manner the precise and explicit requirements for eligibility contained in Sections 401(a) and (b) and Section-402(a) of the Act, 43 P.S. <H801(a) and (b), 43 P.S. §802(a). Sections 401(a) and (b) specify with mathematical exactness, based on the receipt of wages during the five calendar quarters immediately preceding the application for benefits, the work history required for eligibility. It is apparent that Mr. Walters’ work history was sufficient to comply with the criteria of Sections 401(a) and (b) on account of his two previous years of employment as a construction laborer. He was furloughed from this position due to lack of work. While so employed the claimant was enrolled on a part-time basis in the undergraduate engineering program found by the Board to create the presumption of his ineligibility. Section 402(a) renders ineligible for benefits any claimant who does not periodically apply for suitable work with the unemployment authorities or who, having been offered such work by the authorities or by any other employer, refuses to accept it. In this regard, Mr. Walter’s registration for work would, if he were not a student, create a presumption of his availability for work under Section 401(d).

It is therefore clear that a student with no substantial history of previous employment or one who is unwilling or unable to register for and then accept suitable employment when offered is ineligible for benefits under other sections of the Act. It is in my view both unnecessary and unwise to overlay Section 401(d)’s simple requirement that the claimant be available with a presumption reflecting the same consideration carefully described in Sections 401(a) and (b) and Section 402(a). Finally, the judicially ere*82ated requirement applied only to students that they demonstrate the existence of family support obligations is totally without foundation in the Act.

As the majority correctly notes, the student presumption of ineligibility applied to students has been said in a number of cases to ensure that student claimants are, as they are required to be, “realistically and genuinely attached to the labor market. ’ ’ The quoted language has not appeared in Section 401(d) since it was deleted by the 1961 amendments to the Act and, in my judgment, the function of determining attachment to the labor market with respect to those claimants otherwise able and available for work is now performed by other provisions of the Act, especially Sections 401(a) and (b).

Of course, every unemployment compensation claimant must be able and available to perform the duties of some substantial employment position. The presence of competing responsibilities attendant to the pursuit of education, like the competing responsibilities attendant to, for example, child rearing or the care of invalid family members, is certainly evidence relevant to the issue of such availability. However, it is not necessary that a claimant be available for either full-time or permanent employment and no reason is apparent either in the Act or in common experience why a full-time student must be presumed to be unavailable for any substantial, albeit part-time or temporary employment. Indeed, common experience indicates that many, if not most, full-time college students also perform at some point in their college careers substantial employment duties.

• At the time of the referee’s hearing in this case, Mr. Walters’ academic responsibilities required his attendance in classes a mere eight hours each week and these hours were so scheduled as to leave the *83whole of the workday, with the exception of a laboratory course on Monday afternoons and the hour from noon until 1:00 p.m. three days a week, free from scholastic obligations. In his pro se brief Mr. Walters asserts that he would reschedule his classes or withdraw from the college program if necessary to accept an offer of suitable employment and that any increase in his academic responsibilities beyond those undertaken while he was employed was simply the result of his desire to make productive use of his free time during the period of his employment.

I would hold that students, when they lose their jobs through no fault of their own, are no more to be presumed ineligible for benefits than are other classes of claimants. As the Supreme Court wrote in Penn Hills, “in determining whether a disqualification is appropriate, ‘the test is not whether the claimant has taken himself out of the scope of the Act but whether the Act specifically excludes him from its provisions. This is what is meant by a liberal and broad construction.’ ” (Citation omitted) (emphasis in the original). Id. at , 437 A.2d at 1215-1216.