Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of William T. Haynes, No. B-169334-B.
Catherine C. O'Toole, for petitioner.
William J. Kennedy, Associate Counsel, with him Richard L. Cole, Jr., Chief Counsel, for respondent.
Judges Mencer, Blatt and Doyle, sitting as a panel of three. Opinion by Judge Mencer.
[ 65 Pa. Commw. Page 542]
William T. Haynes (claimant) has appealed from an order of the Unemployment Compensation Board of Review (Board) denying him benefits for the weeks ending November 25 and December 2, 1978, pursuant to Section 402.1(3) of the Unemployment Compensation Law (Act), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, added by Section 5 of the Act of July 6, 1977, P.L. 41, 43 P.S. § 802.1(3). We reverse.
Claimant had been employed as a full-time professional employee by the Aliquippa School District (District) when he was laid off at the end of the 1977-78 school year due to economic conditions in the District.*fn1 In August 1978, claimant applied for and received unemployment benefits. During the 1978-79 school year, claimant worked intermittently for the District as a substitute teacher on a per diem basis, while continuing to receive partial benefits. The Board, however, denied benefits on the basis of Section 402.1(3) of the Act for the weeks ending November 25 and December 2, 1978, when the District schools were closed for the Thanksgiving holiday on November 23, 24, and 27, 1978.
[ 65 Pa. Commw. Page 543]
Section 402.1(3) of the Act provides as follows:
(3) With respect to [services performed in an educational institution], benefits payable on the basis of such services shall be denied to any individual for any week which commences during an established and customary vacation period or holiday recess if such individual performed such services in the period immediately before such vacation period or holiday recess, and there is a reasonable assurance that such individual will perform such services in the period immediately following such vacation period or holiday recess.
The Board submits that Section 402.1(3) precludes the payment of benefits to claimant during the weeks in issue because he worked as a per diem substitute approximately one day a week in the term prior to the Thanksgiving holiday and had a reasonable assurance of substitute teaching after the recess. We cannot agree with the Board that Section 402.1(3) applies to this situation.
The intent of the legislature in passing Section 402.1 was to eliminate the payment of benefits to school employees during summer months and other regularly scheduled vacations, on the rationale that such employees are able to anticipate and prepare for these non-working periods. The law thus recognizes that these employees are not truly unemployed or suffering from economic insecurity during scheduled recesses.
The same cannot be said for the claimant in this case. He had been unemployed since August 1978, and his substitute teaching for 15 days in the fall semester of 1978 did not render him "employed," since Section 4(u) of the Act, 43 P.S. § 753(u), provides that "[a]n individual shall be deemed ...