Lipchak v. Com. Unemployment Compensation Bd. of Review
| Decision Date | 28 March 1978 |
| Citation | 34 Pa.Cmwlth. 451,383 A.2d 970 |
| Parties | Stephen J. LIPCHAK, Petitioner, v. COMMONWEALTH of Pennsylvania, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, Respondent. |
| Court | Pennsylvania Commonwealth Court |
Argued Dec. 9, 1977.
Stephen J. Lipchak in pro per.
Edward Van Stevenson, Jr., Pittsburgh, for petitioner.
P Richard Wagner, Gen. Counsel, Sydney Reuben and Susan Shinkman, Asst. Attys. Gen., Robert P. Kane, Atty. Gen Unemployment Compensation Board of Review, Harrisburg, for respondent.
Before CRUMLISH, Jr., MENCER and BLATT, JJ.
Stephen J Lipchak (claimant) appeals here from an order of the Unemployment Compensation Board of Review (Board) which affirmed a referee's determination that he was ineligible for benefits under the Unemployment Compensation Law [1] (Act) because he was a full-time student.
The findings of fact indicate that the claimant worked as a systems analyst for Singer Business Machines (employer) for two and one-half years during which time he attended college on a part-time basis. [2] Because the employer went out of business, the claimant's employment was terminated in August, 1975 at which time he applied to the Bureau of Employment Security for unemployment compensation benefits and in September 1975, the claimant enrolled in college. The Bureau denied him benefits and upon appeal, the referee affirmed, concluding that because the claimant was then a full-time student, he was not genuinely and realistically attached to the labor market and was consequently ineligible for benefits under Section 401(d) of the Act, 43 P.S. § 801(d). [3] The Board affirmed the referee and it is from this determination that the claimant here appeals.
The issue here is whether or not the claimant, being a full-time student, was genuinely and realistically attached to the labor force in accordance with the statutory requirement of Section 401(d) of the Act, 43 P.S. § 801(d).
In Reardon v. Unemployment Compensation Board of Review, 30 Pa.Cmwlth. 139, 373 A.2d 146 (1977), a case very similar to the instant claim, we have recently reviewed the factors relevant to determining a claimant's primary purpose (i. e., maintaining employment or continuing his education) and we concluded that the claimant's primary purpose in that case was not to attend college but rather to obtain employment to sustain himself. In Reardon, supra, 30 Pa.Cmwlth. at 142-43, 373 A.2d at 148-49, Judge Mencer said, speaking for the Court:
he Board argues here that none of the standards set out in Reardon, supra, have been met by this claimant in that there is no evidence in the record to indicate he had a long employment record, had any economic support obligations, or had made a bona fide effort to obtain full-time employment.
We believe that the findings of fact here are inadequate and cannot be construed to resolve all of the factual issues necessary for proper appellate review. The findings do not resolve whether or not the claimant was unconditionally available for full-time employment and whether or not the claimant demonstrated good faith efforts to obtain unconditional full-time employment. The record reveals uncontroverted testimony that claimant was unconditionally available for full-time employment, in that he would either reschedule or drop his classes if he were offered employment. In regard to his efforts to obtain full-time employment, the record indicates claimant had submitted several applications to employers and there was no evidence whatever that he had ever refused an offer of employment or had limited his availability for employment because of his classes. In fact, the record reveals that his purpose in attending classes was to improve his employment opportunities. If this testimony is believed, it could form the basis for findings justifying the award of benefits.
It is not for this Court, however, to make findings of fact because the duty to consider and evaluate testimony and to make findings of fact thereon is for the fact finder. Mosley v. Unemployment Compensation Board of Review, 15 Pa.Cmwlth. 447, 327 A.2d 199 (1974). When the fact finder in an administrative proceeding is required to set forth his findings in an adjudication, that adjudication must include all findings necessary to resolve the issues raised by the evidence which are relevant to the decision. Page's Department Store v. Velardi, 464 Pa. 276, 346 A.2d 556 (1975); Scranton Garment Co. v. Workmen's Compensation Appeal Board, --- Pa.Cmwlth. ---, 381 A.2d 210 (1977).
Accordingly, we therefore remand the record of this case to the Board for the making of new and adequate findings of fact.
AND, NOW, this 28th day of March, 1978, the order of the Unemployment Compensation Board of Review in the above captioned matter, dated July 9, 1976, is hereby vacated, and the record is remanded to the Board for the purpose of making adequate findings of fact.
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Notes:
[1] Act of December 5, 1936, Second Ex.Sess P.L. (1937) 2897, as amended, 43 P.S. § 751 et seq.
[2] We note that there are inconsistent findings of fact in the record. The referee found that during the two and one-half years claimant was employed with Singer Business Machines, he did not attend school but that claimant has...
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