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ROBERT MCCUEN v. COMMONWEALTH PENNSYLVANIA (01/11/85)

decided: January 11, 1985.

ROBERT MCCUEN, 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 Robert McCuen, No. B-214516.

COUNSEL

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

James K. Bradley, Associate Counsel, with him, Charles G. Hasson, Acting Deputy Chief Counsel, for respondent.

Judges Rogers, Williams, Jr. and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Williams, Jr. Judge Kalish dissents.

Author: Williams

[ 87 Pa. Commw. Page 66]

Robert McCuen (claimant), a substitute school teacher, has appealed from an order of the Unemployment Compensation Board of Review (Board) denying him benefits for claim weeks within the summer

[ 87 Pa. Commw. Page 67]

    recess that followed the 1981-82 school year. The Board, by its order, adopted and affirmed a referee's decision which concluded that the claimant had a reasonable assurance of being reemployed as a substitute teacher in the 1982-83 school year, and that the claimant was thus ineligible for benefits during the period in question by force of Section 402.1(1) of the Unemployment Compensation Law (Law).*fn1

The employer involved in this case is the Moon Area School District (Moon School District), which first employed Mr. McCuen in October of 1980 as a part-time, substitute teacher. On June 12, 1981, the end of the 1980-81 school year, McCuen was furloughed by the Moon School District. Later in the summer of 1981 McCuen taught for about 6 weeks in a program conducted by another school district. When that program ended in August 1981, McCuen applied for and was granted unemployment benefits, which he continued to collect until sometime in February 1982.

On March 1, 1982, McCuen was recalled by the Moon School District to fill a 3-month assignment -- until the end of that school year -- as a substitute for a teacher who had taken a maternity leave. When the 1981-82 school year ended on June 4, 1982, McCuen was again furloughed by the Moon School District. The employer did, however, offer him a teaching position in a 4-week summer-school program it was going to conduct. McCuen accepted the offer, but taught only for about a week. When the summer-school program ended on July 12, 1972, McCuen filed a renewed claim for unemployment benefits pursuant to his original application. He proceeded to collect benefits for part of July and part of August, 1982.

[ 87 Pa. Commw. Page 68]

On August 25, 1982, the claimant received and accepted an oral offer from the Personnel Director of the Moon School District, to substitute for a teacher who would be on leave at the beginning of the 1982-83 school year. McCuen began that assignment on August 27, 1982, which was the first day of the new school year. Later, by a letter dated September 14, 1982, the Personnel Director notified Mr. McCuen that the Board of the Moon School District had formally approved him as a substitute teacher for the 1982-83 school year.

On November 6, 1982, the Office of Employment Security (OES) issued a determination that, under the terms of Section 402.1(1) of the Law, McCuen was not eligible for the benefits he received during the summer of 1982. As for the checks the claimant received during that period, the OES determined that they were a non-fault overpayment. ...


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