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FLORENCE H. ELLMAN v. COMMONWEALTH PENNSYLVANIA (11/02/79)

decided: November 2, 1979.

FLORENCE H. ELLMAN, 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 Florence H. Ellman, No. B-159319.

COUNSEL

Florence H. Ellman, petitioner, for herself.

Michael D. Klein, Assistant Attorney General, with him Richard Wagner, Chief Counsel, and Edward G. Biester, Jr., Attorney General, for respondent.

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

Author: Blatt

[ 47 Pa. Commw. Page 180]

Florence H. Ellman (petitioner) appeals from an Unemployment Compensation Board of Review (Board) decision which reversed a referee's decision and denied her benefits.

The petitioner has been a substitute teacher for the Bristol Township School District since February 1974 and she applied for Special Unemployment Assistence (SUA)*fn1 benefits for the summer recess of 1977. The then Bureau of Employment Security

[ 47 Pa. Commw. Page 181]

(Bureau) denied benefits because it found that she was not available for work pursuant to SUA requirements*fn2 within the meaning of Section 401(d) of the Unemployment Compensation Law*fn3 (Act). The referee, however, reversed the Bureau, finding that the petitioner actually was available for work. Both the Bureau and the School District appealed and, after another referee's hearing conducted on behalf of the Board, benefits were once more denied. This appeal followed.

The federal act which authorizes SUA benefits provides in pertinent part that an individual in an instructional capacity is ineligible to receive benefits between two successive years of such employment if:

(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. 26 U.S.C. ยง 3304 (note).

We have previously held that 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). And in the instant ...


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