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

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 ...


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