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ABDEL SOLIMAN v. COMMONWEALTH PENNSYLVANIA (09/29/87)

decided: September 29, 1987.

ABDEL SOLIMAN, 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 Abdel Soliman, No. B-243320.

COUNSEL

Joyce D. Miller, for petitioner.

James K. Bradley, Assistant Counsel, with him, Clifford F. Blaze, Deputy Chief Counsel, for respondent.

Judges MacPhail and Barry, and Senior Judge Narick, sitting as a panel of three. Opinion by Senior Judge Narick.

Author: Narick

[ 109 Pa. Commw. Page 582]

Abdel Soliman (Claimant) appeals from an order of the Unemployment Compensation Board of Review (Board) which affirmed a referee's decision that Claimant was ineligible, under Section 402.1(3)*fn1 of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802.1(3), for the unemployment compensation benefits he received for the week ending

[ 109 Pa. Commw. Page 583]

April 21, 1984. The order also provided that the amount of the non-fault overpayment was to be deducted from future compensation payments under Section 804(b) of the Law, 43 P.S. § 874(b). We reverse.

Claimant applied for unemployment compensation benefits on July 10, 1983 and was determined to be financially eligible based upon his base year earnings from April 1, 1982 to March 31, 1983. He began receiving compensation in July of 1983. In April, 1984, Claimant worked as a per diem substitute teacher for the School District of Philadelphia. He worked during the weeks ending April 14, 1984 and April 28, 1984. He did not work the week of April 21, 1984, when the school was closed for Easter vacation. The Office of Employment Security (OES) determined he was ineligible to receive benefits that week by reason of Section 402.1(3) of the Law, which precludes payment of benefits to claimants who are employees of educational institutions for any week which commences during a vacation or holiday recess period, provided that the claimant worked the period immediately before the vacation, and was reasonably assured of doing so immediately afterwards. Because the referee found as a fact that Claimant worked during the weeks before and after the vacation break, he upheld the OES' determination.

Claimant argues that his situation is indistinguishable from that of the claimant in Haynes v. Unemployment Compensation Board of Review, 65 Pa. Commonwealth Ct. 541, 442 A.2d 1232 (1982). In Haynes, this Court was faced with a per diem substitute teacher who was denied benefits during a Thanksgiving holiday. The claimant therein was receiving partial unemployment compensation benefits. In holding that Section 402.1(3) did not apply, we stated:

The intent of the legislature in passing Section 402.1 was to eliminate the payment of benefits

[ 109 Pa. Commw. Page 584]

    to school employees during summer months and other regularly scheduled vacations, on the rationale that such employees are able to anticipate and prepare for these non-working periods. The law thus recognizes that these employees are not truly ...


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