Wiley Unemployment Compensation Case

Opinion by Wright, J., Robert J. Wiley was last employed by the Sharon Steel Corporation, Farrell, Pennsylvania. His final day of work was May 27, 1960, on which date he had a valid separation. His application for benefits was disallowed by the Bureau of Employment Security, the Referee, and the Board of Review on the ground that he failed to meet the availability requirements of Section 401(d) of the Unemployment Compensation Law. Act of December 5, 1936, P. L. [1937] 2897, 43 P.S. 751 et seq. This appeal followed. Appellant is presently twenty-eight years of age, resides in Sharon, Pennsylvania, and has a wife and two children. He had been continuously employed by the Westinghouse Electric Corporation from July 24, 1951, following his graduation from high school, until March 21, 1958, except for the period from June 2, 1953 to June 6, 1955, while he was in the military service. The separation from his employment with Westinghouse was due to a layoff because of lack of work. He commenced working for the Sharon Steel Corporation on February 24, 1959. After his layoff there, also because of lack of work, he sought employment at the General [258] American Transportation Company, at the Pennsylvania Power Company, and at the Sharon office of the Bureau of Employment Security, all without success. The difficulty in this case arises because of the fact that appellant, during off hours, has been attending college at the University of Youngstown, Youngstown, Ohio. He is now in his senior year. He has been both in full-time employment and in either full or part-time college attendance during the same period. He stated before the Referee that he will accept any available work and will change his class hours accordingly or drop out of college entirely. His testimony on this point was as follows: “Q. Well, what about your availability at the present time? A. If I should get a day time job I would change my classes to night school; if that isn’t sufficient I would just drop out of school because I have to have a job. Q. All right. I am coming to that now. You are way ahead of me. You have to have a job? A. Yes, I got to have a job first, that’s all there is to it. I have a family to support. Q. All right, I will ask you then, would you quit school if you had to in order to take full time employment? A. Yes, sir, because I have been going to school and working since 1956 under the same conditions. I know I could have got transferred”. The record discloses that appellant was and is realistically and genuinely attached to the labor market. He does not fall into the category of an ordinary college student whose primary purpose is to obtain an education, and who is available for work only conditionally or on a limited basis.1 Attendance at college [259] was not this appellant’s primary purpose. His work record and his sincere efforts to obtain employment substantiate the fact that his chief responsibility is the support of his family. His conduct unquestionably meets the requirement of good faith. In the absence of proof that appellant refused suitable employment, he should not be denied benefits. We were confronted with a similar situation in Douty Unemployment Compensation Case, 194 Pa. Superior Ct. 220, 166 A. 2d 65, wherein benefits were denied. To the extent that there is any inconsistency, the decision in the Douty case is overruled. As stated in the dissenting opinion in that case, a claimant “should not be penalized merely because he has the commendable desire, in keeping with the great American tradition, to further his education by attending classes during hours which do not interfere with his job”. Decision reversed. Footnotes [1] Rubin Unemployment Compensation Case, 193 Pa. Superior Ct. 604, 165 A. 2d 101; Majoris Unemployment Compensation Case, 192 Pa. Superior Ct. 269, 162 A. 2d 86; Gulbin Unemployment Com pensation Case, 191 Pa. Superior Ct. 646, 159 A. 2d 37; Bates Unemployment Compensation Case, 191 Pa. Superior Ct. 266, 156 A. 2d 589; Collins Unemployment Compensation Case, 191 Pa. Supe [259] rior Ct. 273, 156 A. 2d 593; Lovich Unemployment Compensation Case, 189 Pa. Superior Ct. 529, 151 A. 2d 647.