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BOROUGH PLEASANT HILLS v. COMMONWEALTH PENNSYLVANIA (02/03/82)

decided: February 3, 1982.

BOROUGH OF PLEASANT HILLS, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeal from the Orders of the Unemployment Compensation Board of Review in the cases of In Re: Claims of Marjorie Noble Smith, No. B-181383; Patricia A. Galiszewski, No. B-181384; Constance C. Daerr, No. B-181385; Elizabeth M. Mayak, No. B-181386; Lois J. Lang, No. B-181387; Julia Zeher, No. B-181388; Doris Jean Barruso, No. B-181389; Dolores A. Slogan, No. B-181390; Dolores M. Kephart, No. B-181391; Agnes Dolinar, No. B-181392; and Charlotte Josephine Erringer, No. B-181393.

COUNSEL

Henry E. Rea, Jr., with him John Newborg, Brandt, Milnes, Rea & Malone, for petitioner.

Charles Hasson, Associate Counsel, with him Stephen B. Lipson, Assistant Attorney General, Richard Wagner, Chief Counsel, and LeRoy S. Zimmerman, Attorney General, for respondent.

President Judge Crumlish, Jr. and Judges Rogers and Craig, sitting as a panel of three. Opinion by President Judge Crumlish, Jr. Judge Palladino did not participate in the decision in this case.

Author: Crumlish

[ 64 Pa. Commw. Page 411]

The Borough of Pleasant Hills appeals an Unemployment Compensation Board of Review order which granted benefits to school crossing guards. We affirm.

In June 1979, the school crossing guards received letters from the Borough assuring them that they would be reemployed when the school year began on September 4, 1979. However, because of a teachers' strike, the school year did not begin until October 19, 1979. The Board held (1) that the appellees were eligible for benefits under Section 401(d)*fn1 of the Unemployment Compensation Law because they were available for work, and (2) Section 402.1(2)*fn2 was inapplicable

[ 64 Pa. Commw. Page 412]

    since appellees were not employed by "an educational institution" and the time period in question was not "between two successive academic years." We agree.

Our scope of review, where the party with the burden of proof has prevailed below, is limited to questions of law and a determination of whether the findings of the Board are supported by substantial evidence. Maxwell v. Unemployment Compensation Board of Review, 54 Pa. Commonwealth Ct. 604, 423 A.2d 430 (1980).

Here we agree with the Board's conclusion that the appellees were available for work. We have held that school employees are "unavailable for work" under Section 401(d) when they expect and desire to return to work after the summer recess. Davis v. Unemployment Compensation Board of Review, 39 Pa. Commonwealth Ct. 146, 394 A.2d 1320 (1978). Here the factual situation dictates a different result. The appellees are not seeking benefits for a period of unemployment during the summer months, but rather for a time period during the scheduled academic year during which they were unemployed through no fault of their own.

Additionally, they were not precluded from receiving benefits under Section 402(d)*fn3 because they were not directly interested in nor participating in the teachers' strike. We also agree with the Board's conclusion that Section 402.1(2) was not meant to apply in this situation. This section reads in pertinent part:

With respect to services performed after December 31, 1977, in any other capacity for an educational ...


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