Renwanz v. Review Bd. of Indiana Employment Sec. Division

• Decision Date: 26 March 1971
• Docket Number: No. 1170A178,No. 1,1170A178,1
• Citation: 267 N.E.2d 844,148 Ind.App. 540
• Parties: Betty J. RENWANZ, Appellant, v. REVIEW BOARD OF the INDIANA EMPLOYMENT SECURITY DIVISION, William H. Skinner, Chairman, Betty S. Barteau and James M. Organ, as Members of and as Constituting the Indiana Employment Security Division and Montgomery Ward, Appellees
• Court: Indiana Appellate Court

Page 844

267 N.E.2d 844

148 Ind.App. 540

Betty J. RENWANZ, Appellant, v. REVIEW BOARD OF the INDIANA EMPLOYMENT SECURITY DIVISION William H. Skinner, Chairman, Betty S. Barteau and James M Organ, as Members of and as Constituting the Indiana Employment Security Division and Montgomery Ward, Appellees.

No. 1170A178.

Appellate Court of Indiana, Division No. 1.

March 26, 1971.

Paul B. Huebner, Hammond, for appellant

Theodore L. Sendak, Atty. Gen., of Indiana, William S. McMaster, Deputy Atty. Gen., for appellee.

BUCHANAN, Judge.

STATEMENT OF THE CASE AND FACTS

This is an appeal from a decision by the Review Board of the Indiana Employment Security Division ('the Board') wherein it determined that Appellant-Claimant Renwanz was unavailable for work and thus ineligible for unemployment benefits. The decision of the Board overruled the determination of eligibility of both the Claims Deputy and the Appeals Referee.

The evidence shows that Appellant was employed for some years by Montgomery Ward until she was laid off on December 24, 1969. She then applied for work at several places primarily in the retail business, but with little success. She testified she was available for full time employment but stipulated she would not accept employment on Sunday or during the evening because she was needed at home during these times to care for her 16 year old son. A careful reading of the Transcript indicates a conflict in her testimony as to her availability for work.

On review the Board entered the following decision (omitting formal parts), as follows:

'FINDINGS AND CONCLUSIONS: The Review Board finds that claimant has applied for work at several places since December 24, 1969, the date of her separation from her last employment as saleslady for a retail concern.

It further finds that claimant has placed limitations on her availability by refusing to accept a jub entailing evening or Sunday work and not wanting to work Saturdays.

It further finds that § 1403 of the Act provides, in part, that an unemployed individual shall be eligible to receive benefits with respect to any week only if he shall make himself available for any shift of hours for suitable employment.

The Review Board concludes that claimant has, by her own restrictions, made herself unavailable for work within the meaning of § 1403 of the Act.'

ISSUES--Two questions are raised for our decision:

1. Is Appellant's brief fatally defective for failing to comply with Appellate Court Rule 7.1(B--2) in that there is a defect of parties because the Board is sued as an entity in its official name rather than naming the individual members as such?

2. Is the decision of the Board contrary to law because it has misconstrued the provisions of the Employment Security Act regarding availability for work in the circumstances of this particular case?

DECISION

I. It is our conclusion that the answer to question No. 1 is in the negative. This appeal should not be dismissed or the Board's action affirmed because Appellant's brief does not properly designate the Board's members individually as parties to the appeal.

The Board has chosen not to file a motion to dismiss in this case but has indicated in its brief certain deficiencies in the Appellant's brief and the record of the proceedings. While Appellant's brief does fail to comply with the Appellate Court Rules in certain minor respects, it is sufficiently complete to present the issues in this case.

A more serious contention is that the Appellant erred in suing the Board as an entity in its official name and not naming the individual members as such in the caption or body of the Assignment of Errors and cites in support thereof Communication Workers of America, Local No. 5790 v. Indiana Employment Security Board et al. (1964) 136 Ind.App. 601, 202 N.E.2d 176. The opinion in this case notes that this particular point is raised on a motion to dismiss and that the title page designating the parties was not signed by counsel and further that the 'appellant's failure to mane the proper party appellees at some place in its assignment of errors pursuant to Rule 2--6, supra, ¹ although not a jurisdictional defect, is grounds for dismissal of the appeal. * * *'

In the instant case the title page on the Transcript does properly name the Review Board of the Indiana Employment Security Division and sets out the names of the individual members and is signed by the attorney for the Appellant. The Board has been notified of the appeal and responded thereto with its brief. This preliminary question disposed of, we proceed to consider the matter on its merits.

II. It is our opinion that question No. 2 must be answered in the affirmative because the Board has misapplied the Act to this particular case.

Pertinent parts of the Indiana Employment Security Act, being I.C. 1971, 22--4--14--3, Ind.Stat.Anno. § 52--1538b Burns, 1970 Cum.Supp., are as follows:

'Physical and mental ability to work--Reduction in benefits for unavailability--Acts constituting unavailability.--An unemployed individual shall be eligible to receive benefits with respect to any week only if: He is physically and mentally able to work, is available for work and is found by the division to be making an effort to secure work: Provided, That such 'effort to secure work,' shall be defined by the board through rule or regulation which shall take into consideration whether such individual has a reasonable assurance of re-employment and, if so, that length of the prospective period of unemployment: Provided further, That if an otherwise eligible individual is unable to work or unavailable for work on any normal work day of the week he shall be eligible to receive benefits with respect to such week reduced by one-third (1/3) of his weekly benefit amount for each day of such inability to work or unavailability for work. For the purposes of this act (§§ 52--1525--52--1563b), unavailability for work of an individual shall be deemed to exist but shall not be limited to, any case in which, with respect to any week, it is found:

(a) That such individual is attending a regularly established school, college, university, hospital, or training school, excluding, however, any night school or parttime training course or is in any vacation period intervening between regular school terms, during which he is a student, of any such regularly established school, college, university, hospital, or training school: Provided, however, That the provisions herein shall not apply during his benefit period to any individual who subsequent to his enrolment in and while attending a regularly established school has been regularly full-time employed and thereafter being unemployed shall maintain residence in the labor market area of such prior employment, shall be making an effort to secure work and shall make...