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PAMELA M. SCHOLTZ ET AL. v. COMMONWEALTH PENNSYLVANIA (04/26/79)

decided: April 26, 1979.

PAMELA M. SCHOLTZ 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 cases of In Re: Claim of Patricia Jean Pickersgill, No. B-130325; Claim of Ellen C. Bancroft, No. B-130326; Claim of Janice D. Kunning, No. B-130327; and Claim of Pamela Scholtz, No. B-130328.

COUNSEL

Irwin B. Wedner, with him Goldberg & Wedner, P.C., for appellants.

Charles G. Hasson, Assistant Attorney General, with him Robert P. Kane, Attorney General, for appellee.

Judges Crumlish, Jr., Blatt and DiSalle, sitting as a panel of three. President Judge Bowman and Judges Crumlish, Jr., Mencer, Rogers, Blatt, DiSalle and Craig. Judges Wilkinson, Jr. and MacPhail did not participate. Opinion by Judge Blatt. Dissenting Opinion by Judge DiSalle. Judge Craig joins in this dissent.

Author: Blatt

[ 42 Pa. Commw. Page 279]

This is a consolidated appeal from four decisions of the Unemployment Compensation Board of Review (Board) affirming the referee's denial of benefits to Pamela Scholtz, Ellen C. Bancroft, Patricia Jean Pickersgill and Janice D. Kunning (claimants) pursuant to Section 401(d) of the Unemployment Compensation Law*fn1 (Act).

The claimants, all temporary professional teachers, were hired by the Pittsburgh Board of Public Education in January 1974. It appears from the record that they taught at the Conroy Special Education Center until the summer recess of 1974 and returned to their jobs in September of 1974 for the 1974-75 school year. That school year ended on June 13, 1975, and the claimants then filed applications for unemployment benefits. They applied to the Bureau of Employment Security (Bureau) for Special Unemployment Assistance (SUA) benefits pursuant to Title II of the Emergency Jobs and Unemployment Assistance Act of 1974, 26 U.S.C. § 3304 Note (Emergency Act). The Bureau denied their applications because it found, contrary to the requirements for SUA benefits, that they were not available for work within the meaning of Section 401(d) of the Unemployment Compensation Law. On appeal to the referee, the cases were consolidated, and after a hearing, the referee issued four separate decisions upholding the Bureau's decisions. The Board affirmed the referee and this appeal followed.

Section 203(b) of the Emergency Act provides in pertinent part, that individuals in an instructional capacity are ineligible to receive benefits between two successive years if:

[ 42 Pa. Commw. Page 280]

(1) such individual performed services in any such capacity for any educational institution or agency in the first of such academic years or terms; and

(2) such individual has a contract to perform services in any such capacity for any educational institution or agency for the later of such academic years or terms.*fn2

26 U.S.C. § 3304 Note.

The contract referred to in the statute need not be a formal written contract, but can consist of an implied agreement or mutual commitment between the teacher and the employer. Ortiz v. Unemployment Compensation Board of Review, 42 Pa. Commonwealth Ct. 234, 400 A.2d 685 (1979). In the instant case the ...


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