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HOPEWELL AREA SCHOOL DISTRICT v. COMMONWEALTH PENNSYLVANIA (07/29/87)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: July 29, 1987.

HOPEWELL AREA SCHOOL DISTRICT, 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 Rina A. D'Eramo, No. B-231056-B.

COUNSEL

William Fearen, with Steven A. Stine, Cleckner and Fearen, for petitioner.

Clifford F. Blaze, Deputy Chief Counsel, for respondent.

William J. Maikovich, for intervenor, Rina A. D'Eramo.

Judges Craig and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri.

Author: Barbieri

[ 108 Pa. Commw. Page 96]

Hopewell Area School District (District) appeals an order of the Unemployment Compensation Board of Review (Board) granting benefits to Rina A. D'Eramo (Claimant) for the weeks ending December 31, 1983, and January 7, 1984.

[ 108 Pa. Commw. Page 97]

Claimant was employed as a full-time faculty member with the District for the 1981-82 school year. At the end of the school year, Claimant was furloughed as a result of a faculty reduction in the District. Beginning in mid-November of 1982, Claimant worked as a permanent substitute under contract with the District for the remainder of the 1982-83 school year. This contract was not renewed,*fn1 and Claimant worked for the District as a per diem substitute until her last day of work, which was December 19, 1983.*fn2 District schools were closed from December 23, 1983, to January 2, 1984, for the Christmas holidays. The Board, affirming the referee,*fn3 granted Claimant benefits for a two-week period during the Christmas break.

On appeal, the District contends that Claimant is ineligible for benefits for the weeks in question pursuant to Section 402.1(3) of the Unemployment Compensation Law,*fn4 which provides as follows:

(3) With respect to [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 vacation period or holiday recess if such individual performed such

[ 108 Pa. Commw. Page 98]

    services in the period immediately before such vacation period or holiday recess, and there is a reasonable assurance that such individual will perform such services in the period immediately following such vacation period or holiday recess.

In Haynes v. Unemployment Compensation Board of Review, 65 Pa. Commonwealth Ct. 541, 442 A.2d 1232 (1982), we held that a per diem substitute teacher was not ineligible for benefits, under Section 402.1(3) of the Act, for the period the district schools were closed for the Thanksgiving holiday. The claimant in Haynes had been furloughed from his position as a full-time teacher at the end of the 1977-78 school year. He worked intermittently as a substitute for the following school year while receiving partial benefits. In awarding benefits to the claimant in Haynes, we reasoned that the legislative intent behind Section 402.1 of the Act was to preclude receipt of benefits by those school employees who, although unemployed during school holidays and vacations, are able to plan for these occasional periods of unemployment and are not truly suffering from the economic insecurity which the Act was intended to alleviate. There, the claimant's per diem teaching did not render him "employed"*fn5 within the meaning of the Act and, therefore, he was receiving benefits on the basis of his previous full-time employment, rather than on those part-time services performed immediately prior to the school holiday.

[ 108 Pa. Commw. Page 99]

Extending the Haynes rationale, we have granted benefits to per diem substitute teachers who would otherwise be disqualified under Section 402.1(1) of the Act,*fn6 for those weeks their school districts were closed for summer recess. Coolidge v. Unemployment Compensation Board of Review, 92 Pa. Commonwealth Ct. 392, 499 A.2d 409 (1985); Reskowski v. Unemployment Compensation Board of Review, 95 Pa. Commonwealth Ct. 280, 505 A.2d 380 (1986); Weirich v. Unemployment Compensation Board of Review, 90 Pa. Commonwealth Ct. 528, 496 A.2d 97 (1985). We have further extended the Haynes rationale to Section 402.1(2) of the Act*fn7 in permitting benefits to a school cafeteria worker for the weeks the school district was closed for the summer recess.

[ 108 Pa. Commw. Page 100]

In Foremsky v. Unemployment Compensation Board of Review, 90 Pa. Commonwealth Ct. 609, 496 A.2d 865 (1985), we refused to apply the Haynes doctrine where a per diem substitute teacher sought benefits for the weeks during the Thanksgiving and Christmas holidays. Foremsky was found ineligible under Section 402.1(3) of the Act because his benefits were based on part-time earnings preceding the holiday recess and that these were the same wages he had a reasonable assurance of returning to immediately after the recess.

Clearly Foremsky is distinguishable from the case before us as Claimant's benefits were based on full-time earnings during her base year. In light of this fact, we need not reach the question of whether she had reasonable assurance that she would be returning to full-time wages immediately after the vacation. This is because Section 402.1(3) premises ineligibility on a finding that (1) the benefits shall be based on services which the claimant performed immediately prior to the vacation or holiday and (2) that there is a reasonable assurance that the claimant will perform those services immediately following the vacation or holiday. As Claimant's benefits were based on her full-time services, Section 402.1(3) does not apply.

Our decision in Haynes is controlling, and, accordingly, we will affirm the Board's order.

Order

And Now, this 29th day of July, 1987, the order of the Unemployment Compensation Board of Review in the above-captioned matter is affirmed.

Disposition

Affirmed.


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