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ROSEANN CHICKEY ET AL. v. COMMONWEALTH PENNSYLVANIA (02/14/75)

decided: February 14, 1975.

ROSEANN CHICKEY ET AL., APPELLANTS,
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, APPELLEE



Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Roseann Chickey, et al., No. B-119330.

COUNSEL

Richard Kirschner, with him Markowitz & Kirschner, for appellants.

Daniel R. Schuckers, Assistant Attorney General, with him Sydney Reuben, Assistant Attorney General, and Israel Packel, Attorney General, for appellee.

Judges Kramer, Wilkinson, Jr. and Mencer, sitting as a panel of three. Opinion by Judge Kramer.

Author: Kramer

[ 16 Pa. Commw. Page 486]

This opinion involves the appeal of eleven employes of the Pennsylvania State Oral School for the Deaf (School) located in Scranton from an order of the Unemployment Compensation Board of Review (Board) denying unemployment compensation benefits. Although these employes include two separate categories, viz. houseparent and teacher aide, and although their history of employment varies, it was agreed, and the record supports, that for purposes of this opinion the legal issues involved are identical for each of the eleven employes.

For several years, the employes worked under an oral agreement whereby they received biweekly pay for the school calendar year, including approximately two weeks prior to the opening of school in September for the purpose of preparing the dormitories and classrooms through the end of the school year in the middle of June. For the school year 1971-72 they reported for work in the latter part of August, 1971. They concluded the year's work on June 16, 1972. They were considered provisional employes and had not qualified as permanent

[ 16 Pa. Commw. Page 487]

    civil service employes.*fn1 Their pay was determined by a grading of state employe service. For instance, one of the eleven was a houseparent under the grade of 26-C. In order to determine the individual's salary, the School divided the annual pay for his grade by 26 in order to determine the biweekly pay and then actually paid said biweekly pay only 22 times. There is no question that these employes received the same vacation days received by other teaching employes of schools in Pennsylvania, as a result of which they received between 25 and 30 days of paid vacation during the school year, e.g., Christmas, Easter, etc. The record clearly shows that although these employes' last day of work was June 16, 1972, they were paid through June 23, 1972. Although the record is not clear concerning the purpose of this extra week's pay, there is a reference by one of the officials of the School that it could be interpreted to be a one-week vacation pay. We also glean from the record that the hospitalization and life insurance coverages of these employes are carried through the summer months, however during the summer period they paid for such coverage. For pension purposes their rights were based upon ten months rather than one full year.

As we have already noted, these employes were not covered by any formal written employment contract. Over the years, a system or policy developed whereby all of these employes were carried upon the roll of the school during the summer months for the purpose of employment in the following September, unless the employe was notified of his termination at the end of the previous school year. For a period of fifteen years no employe had ever been refused employment in the following

[ 16 Pa. Commw. Page 488]

    school year. The School expected each of these employes to return for employment in late August or early September of 1972. The houseparent employes were advised by letter in early August 1972 to return to work. The teacher's aides, however, were required to take the initiative to contact the regular teacher with whom they worked to determine the date they were to return. In at least one of the cases a teacher's aide was informed prior to June 16, 1972, when to return and with whom she would be working. The houseparents actually began work on August 21, 1972. All of these employes were expected to work 37 1/2 or 40 hours per week and from the record, all of them expected to return for work in September of 1972. None of them received any pay for the period June 24 through August 15, 1972.

On or about July 1, 1972, the employes filed applications for unemployment compensation benefits under the Unemployment Compensation Law (Act), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. ยง 751 et seq. In early August of 1972, the Bureau of Employment Security determined the employes to be ineligible. Upon appeal and after hearing, the referee affirmed the Bureau's decision. The employes again appealed and the Board, on October 17, 1973, affirmed the referee's decision, but later vacated its decision and scheduled another hearing which was held January 21, 1974. Following the hearing, the Board on ...


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