United Theological Seminary Plaintiff-Appellant
vs.

Administrator, Ohio Bureau of Employment Services and

Montgomery County Department of Human Services and

Alan L. House Defendants-Appellees

No. CA 10509
COURT OF APPEALS OFOHIO, SECOND APPELLATE DISTRICT,MONTGOMERYCOUNTY
Slip Opinion
November 23, 1987,Decided

COUNSEL

 

THOMAS ANGELO, III, Flanagan, Lieberman, Hoffman & Swaim, Attorney for Plaintiff-Appellant.
JOHN F. KRUMHOLTZ, Attorney for Defendant-AppelleeMontgomery County Department of Human Services.
ANTHONY J. CELEBREZZE, JR., Attorney General, BY: WILLIAM D. HADERS, Assistant Attorney General, Attorneys forDefendant-AppelleeAdministrator,OhioBureau of Employment Services.

JUDGES

 

KERNS, P.J.; WOLFF, J. and FAIN, J., concur.
AUTHOR:KERNS

OPINION

 

 

 
KERNS, P.J.

 

On May 17, 1985, Alan L. House filed an application for unemployment compensation benefits with the Ohio Bureau of Employment Services. On June 4, 1985, the Administrator disallowed House's application, but after an evidentiary hearing, the finding of the Administrator was reversed by the Board of Review. On August 6, 1985, the United Theological Seminary filed an application to institute a further appeal before the Board of Review, but on September 17, 1985, the application was disallowed. Thereafter, the decision of the Board of Review was affirmed by the Court of Common Pleas of Montgomery County, and the cause is presently before this court for further review.

 

The only assignment of error has been set forth by the appellant, United Theological Seminary, as follows:

 

"The trial court erred in finding that claimant's employment was not excluded under Revised Code Section 4101.01(B)(3)(e)(i)."

 

According to the evidence,House was admitted to the Seminary as a student in February, 1984,but he did not attend classes until September 5, 1984. In June, 1984, House commenced employment with theUnited Wayon a full-time basis under a work-study program, and he continued working for eleven weeks, or until his employment was interrupted by a school orientation program on August 17, 1984. Thereafter, because of classes, he worked only twenty hours per week untilOctober 13, 1984, at which time he withdrew as a student at the United Theological Seminary. The appellant seeks support for its alleged error from R.C. 4101.01(B)(3)(e)(i), which excludes some services from the term "employment" and provides, in pertinent part, as follows:

 

"'Employment' does not include * * * * * service in the employee of an educational institution or institution of higher education * * * * * if such service is performed by a student who is enrolled and is regularly attending classes at the educational institution or institution of higher education * * *."(Emphasis ours)

 

The appellant contends that Mr. House had to be a "regular student" to qualify for the federal work-study program under Section 675.9(A)(1), Title 34, C.F.R., and that he therefore must be considered to have been "regularly attending classes" under R.C. 4101.01(B)(3)(e)(i). As a matter of fact, however,House was not regularly attending classes from June 5, 1984 to August 19, 1984, and even the federal legislation does not impose any requirement that a regular student be regularly attending classes. Moreover, R.C. 4141.46 requires the court to adopt a construction of the statute which is most favorable to the employee.

 

Furthermore, it is fundamental that a decision of the Board of Review cannot be reversed unless it is unlawful, unreasonable, or against the manifest weight of the evidence. R.C. 4141.28(0); Bernard v. Administrator, 9OhioApp. 3d 277.Neither theCommon Pleas Courtnor this court has any authority merely to substitute its judgment for that of the Board of Review. Kilgore v. Board, 2OhioApp. 2d 69.See also, Fahl v. Board, 2OhioApp. 2d 286.In the present case, House was not "regularly attending classes" so as to meet the exclusionary requirements of the applicable statute, and accordingly, the alleged error is overruled.

 

WOLFF, J. and FAIN, J., concur.

DISPOSITION
 

The judgment of the Common Pleas Court will be affirmed.