Appeals in cases of In Re: Claim of George Hyduchak, No. B-135173; Claim of David F. Karr, No. B-135403; Claim of Albert Visocky, No. B-141907; Claim of Ernest J. Stolten, No. B-136624; and Claim of Philip Scavo, No. 136183.
John E. V. Pieski, for petitioners.
Michael Klein, Assistant Attorney General, with him Sydney Reuben, Assistant Attorney General, and Robert P. Kane, Attorney General, for respondent.
President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Rogers, Blatt and DiSalle. Opinion by Judge Blatt.
[ 35 Pa. Commw. Page 576]
Five cases involving the eligibility of public school teachers for unemployment compensation during the summer months when they are not teaching have been consolidated for purposes of argument and decision by this Court. Each of the five claimants has appealed from a decision of the Unemployment Compensation Board of Review (Board) denying him benefits.
Although the procedural history differs somewhat in each case, these five claimants can be divided into two groups based upon the legal issues involved: Group I, consisting of claimants George Hyduchak, David Karr, and Albert Visocky, who were denied
[ 35 Pa. Commw. Page 577]
benefits principally because they had been found by the Board to have had at least an implied contract to return to their teaching positions in the fall and were, therefore, ineligible for benefits under Section 203(b) of the Emergency Jobs and Unemployment Assistance Act of 1974, 26 U.S.C.A. § 3304; and Group II which included claimants Ernest Stolten and Philip Scavo who were denied benefits under Section 4(u) of the Unemployment Compensation Law*fn1 (Act), 43 P.S. § 753(u), because the Board concluded that, by electing to receive their salary over a twelve-month period, they did not meet the definition of "unemployed."
Our scope of review, of course, is limited in unemployment compensation cases to a determination of whether or not an error of law was committed, and, absent fraud, to a determination of whether or not findings of fact are supported by the evidence. Westfall v. Unemployment Compensation Board of Review, 32 Pa. Commonwealth Ct. 619, 379 A.2d 1389 (1977).
The three claimants in Group I had worked for either two or three years in the Lackawanna County Vocational Technical School at the time they applied for unemployment benefits in June, 1976. None of the three had yet been tenured and none worked under a written contract. None were officially notified until late in the summer that they were to report to work for the next school term, but each admitted either on his application form or at the referee's hearing that he had some expectation that he would be returning to work.*fn2
[ 35 Pa. Commw. Page 578]
Each claimant in Group I was initially denied benefits by the Bureau of Employment Security (Bureau) based on this Court's decision in Chickey v. Unemployment Compensation Board of Review, 16 Pa. Commonwealth Ct. 485, 332 A.2d 853 (1975), in which school employees were held to be ineligible for benefits during the summer months because they were not available for suitable work without limitation and were not actually and permanently attached to the labor force. See also, Ritter v. Unemployment Compensation Board of Review, 34 Pa. Commonwealth Ct. 68, 382 A.2d 1255 (1978); Calvano v. Unemployment Compensation Board of Review, 29 Pa. Commonwealth Ct. 79, 368 A.2d 1367 (1977). Section 102(b)(1)(B) of the Emergency Unemployment Compensation Act of 1974, 26 U.S.C.A. § 3304, however, permits payments to individuals who "have no rights to compensation" under the state unemployment ...