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LOCK HAVEN UNIVERSITY PENNSYLVANIA STATE SYSTEM HIGHER EDUCATION v. COMMONWEALTH PENNSYLVANIA (06/09/89)

decided: June 9, 1989.

LOCK HAVEN UNIVERSITY OF PENNSYLVANIA OF THE STATE SYSTEM OF HIGHER EDUCATION, PETITIONER,
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



PETITION FOR REVIEW

COUNSEL

Richard A. Holmes, Millersville, for petitioner.

Clifford F. Blaze, Depty. Chief Counsel, John E. Herzog, Asst. Counsel, Harrisburg, for respondent.

Craig and Barry, JJ., and Blatt, Senior Judge.

Author: Barry

[ 126 Pa. Commw. Page 403]

OPINION

Lock Haven University (Employer) petitions for our review of an order of the Unemployment Compensation Board of Review (Board) which awarded benefits to Mary O'Neill (Claimant). The Employer argues that the Claimant is ineligible for benefits under Section 402.1(1) of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. ยง 802.1(1). We affirm.

The Claimant was last employed as an Act 101 counselor at Lock Haven University for the period September 28, 1987 through May 20, 1988. The claimant held this position for each of the preceding seven academic years. In each of these years the Employer offered and the Claimant accepted the position of Act 101 counselor as a temporary position, i.e., for the duration of that academic year only. Pursuant to the terms of the contract the Claimant was terminated at the end of each academic year. For purposes of this appeal, the termination date of the relevant academic year was May 20, 1988. The contract language providing for the Claimant's termination states, "It is understood that there is no expectation of continued employment beyond the specified termination date of May 20, 1988, and that employment up to May 20, 1988, is entirely contingent upon the availability of Act 101 funding." (Board Finding of Fact No. 6).

Further, Lock Haven University was subject to an arbitrator's award which had been issued in a grievance unrelated to this claim. As a result of that award the Employer was required to offer, inter alia, the Claimant's position to retrenchees. The Claimant was aware of this obligation and received notice of the offering each spring. On April 5,

[ 126 Pa. Commw. Page 4041988]

, the Claimant was notified of the offering by the Employer in a letter which stated in pertinent part:

Lock Haven will, therefore, notify retrenchees of your present position. Those retrenchees who apply for the position within the 60 day period must be accorded preferential hiring status. Further, in addition to our obligation to make your present position available to retrenchees, this letter will serve as a reminder that in accordance with your current employment agreement, Lock Haven ...


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