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HENRY J. DELUCA v. COMMONWEALTH PENNSYLVANIA (05/03/83)

decided: May 3, 1983.

HENRY J. DELUCA, 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 Henry J. DeLuca, No. B-189807.

COUNSEL

Shelley W. Elovitz, Watzman & Elovitz, for petitioner.

John T. Kupchinsky, Associate Counsel, with him, Richard L. Cole, Jr., Chief Counsel, for respondent.

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

Author: Doyle

[ 74 Pa. Commw. Page 81]

Before this Court is an appeal by Henry J. DeLuca (Petitioner) from a decision and order of the Unemployment Compensation Board of Review (Board) affirming a referee's denial of benefits pursuant to Section 402.1 of the Unemployment Compensation Law (Law).*fn1

There is no dispute as to the pertinent facts in this matter. Petitioner, as a teacher employed by the Allegheny Intermediate Unit, was traditionally proffered employment contracts which provided him with

[ 74 Pa. Commw. Page 82]

    work 11.25 months per year by retaining his services for both the traditional school terms and the Unit's special summer session. In 1980, however, budget constraints mandated a reduction in the summer program. Thus, when Petitioner's contract for the 1979-80 school year expired on or about June 30, 1980, Petitioner was informed that, rather than renewing his contract immediately as it had in the past, the Unit would not renew his contract until the next regular term commenced in September. The new contract, of lesser duration, reduced Petitioner's salary proportionately. Under the provisions of a special short term contract, Petitioner was able to work for the Unit until July 25. He was unemployed from then until September, and he filed a claim for unemployment compensation for that period. The Office of Employment Security denied the claim, as did a referee following a hearing, on the basis of Petitioner's status as a teacher who had a reasonable expectation of employment in the Unit's next regular academic term. The Board affirmed and the appeal to this Court followed in which Petitioner contends the denial of benefits was predicated on an error of law.

It is well settled that a teacher who is unemployed during a break between academic terms, and who has a reasonable expectation of employment in the second of said terms which he intends to accept is not entitled to unemployment compensation. Section 402.1(1) and 402.1(4) of the Law, 43 P.S. §§ 802.1(1) and 802.1(4). See Foti v. Unemployment Compensation Board of Review, 60 Pa. Commonwealth Ct. 128, 430 A.2d 1043 (1981); Partridge v. Unemployment Compensation Board of Review, 60 Pa. Commonwealth Ct. 47, 430 A.2d 735 (1981).

Before this Court, Petitioner argues that Sections 402.1(1) and 402.1(4) of the Law are inapplicable to his claim because he was usually employed by the Unit

[ 74 Pa. Commw. Page 83]

    over the summer and his unemployment was not because of a break between academic terms but rather because of fiscal problems. In essence, he is contending that, when in determining whether Section 402.1(1) or 402.1(4) is applicable to a claim for unemployment compensation, the Board must look not only at the nature of the period of unemployment, i.e., a break between terms, and whether the claimant expects to be employed when school recommences, but ...


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