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ALLAN JOHN FOREMSKY v. COMMONWEALTH PENNSYLVANIA (08/05/85)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: August 5, 1985.

ALLAN JOHN FOREMSKY, 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 Allan John Foremsky, No. B-218274.

COUNSEL

Ronald N. Watzman, with him, Shelley W. Elovitz, for respondent.

Mary Drake Korsmeyer, Peacock, Keller, Yohe, Day & Ecker, for respondent.

President Judge Crumlish, Jr., Judge Rogers and Senior Judge Kalish, sitting as a panel of three. Opinion by President Judge Crumlish, Jr.

Author: Crumlish

[ 90 Pa. Commw. Page 610]

Allan Foremsky appeals an Unemployment Compensation Board of Review order*fn1 reversing a referee's decision and denying him benefits pursuant to Section 402.1(3) of the Unemployment Compensation Law.*fn2 We affirm.

Foremsky, a per diem substitute teacher in the Elizabeth Forward School District, contends that he is entitled to benefits for the weeks ending when the District schools were closed for the 1982 Thanksgiving and Christmas recesses. Section 402.1(3) states:

(3) With respect to any services [performed for 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 . . . holiday recess if such individual performed such services in the period immediately before such . . . recess, and there is a reasonable assurance that such individual will perform such services in the period immediately following such . . . recess.

The Board denied Foremsky benefits for those two weeks on the ground that he worked for the School

[ 90 Pa. Commw. Page 611]

District prior to the Thanksgiving and Christmas recesses and was reasonably assured of returning to work following those periods. Reasonable assurance is a matter to be determined by the Board based on relevant facts. Guth v. Unemployment Compensation Board of Review, 81 Pa. Commonwealth Ct. 79, 473 A.2d 228 (1984).

In determining that Foremsky had a reasonable assurance of returning to work as a part-time substitute teacher following the Thanksgiving and Christmas holidays, the Board noted Foremsky's employment history as a per diem substitute during the past two academic years. Moreover, the record reveals "objective evidence*fn3 of mutual commitment between the teacher and employer so that a teacher has a reasonable expectation of returning to employment," which this Court has required for a finding of reasonable assurance. Id. at 82, 473 A.2d at 230 (1981).

Foremsky contends, however, that he is entitled to benefits under this Court's ruling in Haynes v. Unemployment Compensation Board of Review, 65 Pa. Commonwealth Ct. 541, 442 A.2d 1232 (1982). We disagree.

In Haynes we held that the claimant, a furloughed full-time teacher who taught on a part-time substitute basis in the following academic year, was eligible for benefits for the customary holiday weeks. We noted

[ 90 Pa. Commw. Page 612]

    that the claimant there did not seek benefits on the basis of his part-time substitute salary but rather on the basis of his full-time earnings during the previous year (his base year for computing benefits). Id. at 544, 442 A.2d at 1233. In contrast, the Board found that Foremsky's benefits were based on his part-time earnings preceding the holiday recesses, the same wages which he had a reasonable assurance of earning after the recesses.

For these reasons, we hold that the Board properly concluded that Foremsky was ineligible for benefits.

Affirmed.

Order

The order of the Unemployment Compensation Board of Review, No. B-218274 dated May 19, 1983, is affirmed.

Disposition

Affirmed.


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