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MICHAEL NYTIAHA v. COMMONWEALTH PENNSYLVANIA (02/11/81)

decided: February 11, 1981.

MICHAEL NYTIAHA, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW AND UNIVERSITY OF PENNSYLVANIA, RESPONDENTS. ADELE FOSTER, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW AND UNIVERSITY OF PENNSYLVANIA, RESPONDENTS. JAMES W. MCPHERSON ET AL., PETITIONERS V. COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW AND UNIVERSITY OF PENNSYLVANIA, RESPONDENTS



Appeals from the Order of the Unemployment Compensation Board of Review in the cases of In Re: Claim of Michael Nytiaha, No. B-144988-B; Claim of Adele Foster, No. B-165902; and Claim of James W. McPherson, et al., No. B-168503.

COUNSEL

Bruce M. Ludwig, with him Stephen A. Sheller, P.C., for petitioners.

William J. Kennedy, Assistant Attorney General, with him Richard Wagner, Chief Counsel, and Harvey Bartle, III, Acting Attorney General, for respondent, Unemployment Compensation Board of Review.

Kathryn H. Levering, with her Francis J. Connell, III, Drinker, Biddle & Reath, for respondent, University of Pennsylvania.

President Judge Crumlish and Judges Wilkinson, Jr., Mencer, Rogers, Craig, Williams, Jr. and Palladino. Judges Blatt and MacPhail did not participate. Opinion by Judge Mencer.

Author: Mencer

[ 56 Pa. Commw. Page 565]

The claimants in the instant unemployment compensation appeals are dining-service employees of the University of Pennsylvania (University). During the regular school years in question, the University employed approximately 125 dining-service workers. Their primary function was to feed the University's resident students in the dormitory dining halls and to perform the necessary food service functions in the cafeterias which serve day students and faculty. The size of the University's student body decreases substantially during the summer months, and therefore the University lays off approximately 85 of its dining-service workers each summer.

The appeals here stem from two summer layoffs. Some claimants were laid off during the summer of 1976; others were laid off during the summer of 1977.*fn1

[ 56 Pa. Commw. Page 566]

Their applications for unemployment compensation were denied by the Unemployment Compensation Board of Review on the authority of 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).

In addition to these two cases, we view these appeals to be controlled by Minnick v. Unemployment Compensation Board of Review, 36 Pa. Commonwealth Ct. 648, 388 A.2d 798 (1978). In Minnick, 37 laundry drivers and snack-bar workers, who were full-time employees of Pennsylvania State University, were laid off between that University's fall and winter terms. They sought unemployment compensation benefits but were denied such benefits and we affirmed those denials. We stated in Minnick what is equally applicable here:

Like the claimants in Chickey, the claimants here were unemployed during a prescheduled term break and were scheduled to return to work at the end of the break. Unlike Chickey, the claimants here were not completely certain they would be ...


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