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NESHAMINY SCHOOL DISTRICT v. COMMONWEALTH PENNSYLVANIA (03/17/81)

decided: March 17, 1981.

NESHAMINY SCHOOL DISTRICT, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeal from the Order of the Unemployment Compensation Board of Review in the case of In Re: Claim of Gerald A. Miller, Jr., No. B-176-811.

COUNSEL

Miriam Reimel, with her Jack Sirott, for petitioner.

Richard Wagner, Chief Counsel, with him Elsa D. Newman-Silverstine, Assistant Attorney General, and Harvey Bartle, III, Acting Attorney General, for respondent.

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

Author: Wilkinson

[ 57 Pa. Commw. Page 544]

This is an appeal by Neshaminy School District (District) from an order of the Unemployment Compensation Board of Review (Board) which reversed a referee and granted unemployment compensation benefits to claimant. We reverse.

As of June, 1979 claimant had been employed by the District for two-and-one-half academic years as a long term substitute teacher. Long term substitutes fill in for full-time teachers who are on various long term leaves of absences. For two consecutive summers claimant was laid off following the end of the school year in June but returned to employment as a long term substitute when the school year resumed in September. Claimant became unemployed after June 18, 1979 when school closed for summer vacation.

In April of 1979, the District sent all long term substitute teachers a memorandum stating that tentative staff assignments were being made. This memorandum asked the substitutes to indicate their availability for contract teacher positions, for long term substitute positions, and their willingness to have their name added to the day to day substitute list for the 1979-80 school year. The memorandum also explained that any long term substitute position would first be filled by any contract teachers who had been suspended due to declining enrollment. On May 18, 1979 claimant returned the requisite form indicating his availability and willingness to be considered for all three of the possible positions. In a letter dated June 15, 1979 claimant was informed that the District would

[ 57 Pa. Commw. Page 545]

    only be able to provide him with day to day substitute employment for the 1979-80 school year. Claimant sought benefits for the claim weeks ending June 23 and June 30, 1979. The Bureau (now Office) of Employment Security ruled the claimant was ineligible for benefits under Section 402.1(1) of the Unemployment Compensation Law (Act),*fn1 determining that claimant had a reasonable assurance of performing services for the District in the 1979-80 academic year. After a hearing before a referee on August 3, 1979 at which the claimant and an employer representative appeared, the referee affirmed the Bureau's denial but modified the decision by concluding that claimant was also unavailable for work and so ineligible within the meaning of Section 401(d) of the Act, 43 P.S. ยง 801(d). The Board reversed the referee and granted benefits which resulted in this appeal.

Section 402.1(1) of the Act provides in pertinent part:

(1) With respect to service performed . . . in an instructional, research, or principal administrative capacity for an educational institution, benefits shall not be paid based on such services for any week of unemployment commencing during the period between two successive academic years . . . to any individual if such individual performs such services in the first of such academic years . . . and if there is a contract or a reasonable assurance that such individual ...


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