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JOANNA DAVIS v. COMMONWEALTH PENNSYLVANIA (12/11/78)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: December 11, 1978.

JOANNA DAVIS, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT

Appeal, from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Joanna Davis, No. B-138768-B.

COUNSEL

James H. English, for petitioner.

Charles G. Hasson, Assistant Attorney General, with him Gerald Gornish, Attorney General, for respondent.

Judges Mencer, DiSalle and MacPhail, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 39 Pa. Commw. Page 147]

Joanna Davis (claimant) appeals an order of the Unemployment Compensation Board of Review (Board) denying her benefits under Section 401(d) of the Unemployment Compensation Law (Act), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 801(d). We affirm.

The claimant was employed as a cafeteria worker for the Altoona Area School District (District) for three years prior to the present controversy. As in the past, on June 8, 1976, school closed and claimant was laid off for the summer. She promptly filed an application for Special Unemployment Assistance (SUA) benefits.*fn1 The Bureau of Employment Security denied her claim, on the basis that she was unavailable for suitable work, citing Section 401(d) of the Act. The referee and the Board, relying respectively on Chickey v. Unemployment Compensation Board of Review, 16 Pa. Commonwealth Ct. 485, 332 A.2d 853 (1975), and Calvano v. Unemployment Compensation Board of Review, 29 Pa. Commonwealth Ct. 79, 368 A.2d 1367 (1977), affirmed, finding that claimant expected to return to work with the District in the fall. After a petition for reconsideration and oral argument by the

[ 39 Pa. Commw. Page 148]

    claimant, the Board reaffirmed its decision and this appeal followed.

Claimant seeks to distinguish our decision in Chickey, supra, where we held that school employees who expected and desired to return to work with their employers at the end of a summer or vacation recess are "unavailable for suitable work" under Section 401(d) of the Act. As noted in Tokar v. Unemployment Compensation Board of Review, 35 Pa. Commonwealth Ct. 241, 385 A.2d 634 (1978), the status of employees of educational institutions is unique, being analogous to that of students. See, e.g., Claim of Wright, 25 Pa. Commonwealth Ct. 522, 360 A.2d 842 (1976); Woodley v. Unemployment Compensation Board of Review, 13 Pa. Commonwealth Ct. 8, 317 A.2d 897 (1974). Such treatment conforms with the Legislature's intent not to subsidize the vacation periods of those who know well in advance that they may be laid off for certain specified periods. See, e.g., Minnick v. Unemployment Compensation Board of Review, 36 Pa. Commonwealth Ct. 648, 388 A.2d 798 (1978). As stated in Chickey, supra.

[i]n effect what the employes in this case are requesting is that the government should provide them with a full year's income because they have agreed to work and be paid for only 44 weeks of each year.

Id. at 494, 332 A.2d at 857.

Indeed, an analysis of the cases following Chickey indicate that educational personnel are normally ineligible for benefits during a prescheduled vacation period absent proof on their part that there is some substantial reason to believe they will not be recalled at the end of the recess. See Minnick, supra; Hyduchak v. Unemployment Compensation Board of Review, 35 Pa. Commonwealth Ct. 575, 387 A.2d 669

[ 39 Pa. Commw. Page 149]

(1978); Miller v. Unemployment Compensation Board of Review, 34 Pa. Commonwealth Ct. 536, 383 A.2d 1303 (1978); Ritter v. Unemployment Compensation Board of Review, 34 Pa. Commonwealth Ct. 68, 382 A.2d 1255 (1978); Calvano, supra. Cf. Section 402.1 of the Act, added by Section 5, Act of July 6, 1977, P.L. 41, 43 P.S. § 802.1 (recent amendment to the Act, consonant with the holding of Chickey).

In the absence of anything in the record to indicate that claimant had any reasons to believe she would not be recalled,*fn2 claimant has not sustained her burden of proof. Moreover, given the contradictions in claimant's testimony*fn3 and a similar method of recall as in Hydachak, supra, and Chickey, supra,*fn4 we cannot say, utilizing the applicable standard of review, see Greer v. Unemployment Compensation Board of Review, 34 Pa. Commonwealth Ct. 602, 383 A.2d 1327 (1978), that the Board capriciously disregarded competent evidence in finding that claimant desired and expected to be recalled by her employer. Therefore, the order of the Board must be affirmed.

Order

And Now, this 11th day of December, 1978, the order of the Unemployment Compensation Board of Review, dated March 28, 1977, denying Joanna Davis benefits, is hereby affirmed.

Disposition

Affirmed.


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