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RONALD RESKOWSKI v. COMMONWEALTH PENNSYLVANIA (02/25/86)

decided: February 25, 1986.

RONALD RESKOWSKI, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeal from the Order of the Unemployment Compensation Board of Review in the case of In Re: Claim of Ronald Reskowski, No. B-222611.

COUNSEL

Lorraine M. Bittner, for petitioner.

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

Judges MacPhail and Doyle, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri.

Author: Barbieri

[ 95 Pa. Commw. Page 281]

Claimant Ronald Reskowski appeals here the order of the Unemployment Compensation Board of Review (Board) affirming the referee and disallowing benefits pursuant to Section 402.1(1) of the Unemployment Compensation Law (Law)*fn1 which prevents employees serving in an instructional capacity from collecting benefits during the recess between successive academic terms if there is reasonable assurance of such employment in the second academic term.

The referee determined that, because Claimant, who had worked 52 days during the 1982-83 school year

[ 95 Pa. Commw. Page 282]

    as a per diem substitute teacher and also received partial unemployment compensation, had agreed to have his name placed on the list of substitute teachers for the 1983-84 school year, he had reasonable assurance of employment in the next academic term and was, therefore, totally precluded from receiving benefits during the summer recess. The Board affirmed and, on appeal, Claimant makes alternative arguments regarding his eligibility for benefits, and, in addition, questions whether his due process rights were violated when the referee proceeded with the hearing despite the absence of Claimant's attorney.

The Claimant, whose base year full-time employment was not with the school district, argues first, that, as a result of the school district's furlough of over 170 teachers having contractual priority over Claimant, his relative rank on the list of substitute teachers is such that he does not have reasonable assurance of employment in the coming academic term.

In the alternative, Claimant argues that even if he does have reasonable assurance, he is still entitled to partial benefits pursuant to this Court's decision in Coffey v. Unemployment Compensation Board of Review, 45 Pa. Commonwealth Ct. 454, 405 A.2d 1012 (1979). In Coffey, the claimant had been collecting full benefits based upon her separation from a full-time job at a lumber company. She then obtained a part-time job as a cafeteria worker for a school district. Because her earnings with the school district were less than the total of her weekly benefit rate plus her partial benefit credit, she continued to receive partial benefits. The Board then terminated all of her benefits when the summer recess began based upon her unavailability [Section 401(d)(1),*fn2 the section

[ 95 Pa. Commw. Page 283]

    used to disqualify employees of educational institutions prior to codification of Section 402.1] for summer work due to her assurance of having work with the school district in the next school term. We reversed the Board and allowed partial unemployment compensation pursuant to the rationale enunciated in Unemployment ...


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