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KAY SUDE v. COMMONWEALTH PENNSYLVANIA (06/04/80)

decided: June 4, 1980.

KAY SUDE, 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 Kay Sude, No. B-171370.

COUNSEL

Albert Squire, for petitioner.

Gary Marini, with him Charles G. Hasson, Assistant Attorneys General, Richard Wagner, Chief Counsel, and Edward G. Biester, Jr., Attorney General, for respondent.

President Judge Crumlish and Judges Blatt and Williams, Jr., sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 52 Pa. Commw. Page 15]

Kay Sude (claimant) appeals here from an order of the Unemployment Compensation Board of Review (Board) denying her benefits under Section 402(a) of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(a), for failure to accept, without good cause, suitable work offered to her.

The claimant was employed as a part-time English teacher by the Delaware County Intermediate Unit (employer), and she was assigned to the Radnor School District, where she worked 20 hours per week at $9.20 per hour. Her last day of work was on June 16, 1977, at which time the school was closed for the summer recess. When she applied for unemployment compensation, the Board denied her claim, and we affirmed that denial on appeal, holding that, because she desired and expected to return to her employment upon commencement of the next school term, she was not available for suitable work as required by Section 401(d) of the Law, 43 P.S. § 801(d).*fn1 On September 13, 1977, the employer offered re-employment to the claimant at the Ridley and Wallingford-Swarthmore School Districts for eight hours (two one-half days) per week at $9.50 per hour. She rejected this offer, citing the increased travel time involved and her desire for full-time employment. When she again applied for unemployment compensation, the Board decided that she had refused to accept suitable work. It concluded, however, that under Unemployment Compensation Board of Review v. Fabric, 24 Pa. Commonwealth Ct. 238, 354 A.2d 905 (1976), she was ineligible only for the amount of her potential part-time earnings. Partial benefits for the time period concerned were awarded, and the claimant has now appealed from this order.

[ 52 Pa. Commw. Page 16]

The claimant argues first that the Board improperly decided her case under Section 402(a) of the Law. She contends that she was under contract with the employer through the summer and therefore did not terminate her employment until she refused the reassignment in September. Because the reassignment constituted a substantial change in the terms of her employment, she argues, her rejection was a voluntary termination for cause of a necessitous and compelling nature under Section 402(b)(1). In fact, she insists, our previous decision in which we rejected her claim under Section 401(d) of the Law established that she was indeed employed during the summer months. We disagree.

Section 401(d) provides as follows:

Compensation shall be payable to any employe who is or becomes unemployed, and who --

(d) Is able to work and available for suitable work. . . . (Emphasis added.)

To qualify for benefits under Section 401(d), therefore, a claimant must (1) be "unemployed" and (2) be "able to work and be available for suitable work." The claimant here was found disqualified in her previous appeal, as have many similarly situated teachers,*fn2 not because she was employed ...


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