Scholtz v. Commonwealth

Opinion by Judge Blatt, This is a consolidated appeal from four decisions of the Unemployment Compensation Board of Review (Board) affirming the referee’s denial of benefits to Pamela Scholtz, Ellen C. Bancroft, Patricia Jean Pickersgill and Janice D. Knnning (claimants) pursuant to Section 401(d) of the Unemployment Compensation Law1 (Act). The claimants, all temporary professional teachers, were hired by the Pittsburgh Board of Public Education in January 1974. It appears from the record that they taught at the Conroy Special Education Center until the summer recess of 1974 and returned to their jobs in September of 1974 for the 1974-75 school year. That school year ended on June 13,1975, and the claimants then filed applications for unemployment benefits. They applied to the Bureau of Employment Security (Bureau) for Special Unemployment Assistance (SUA) benefits pursuant to Title II of the Emergency Jobs and Unemployment Assistance Act of 1974, 26 U.S.C. §3304 Note (Emergency Act). The Bureau denied their applications because it found, contrary to the requirements for SUA benefits, that they were not available for work within the meaning of Section 401(d) of the Unemployment Compensation Law. On appeal to the referee, the cases were consolidated, and after a hearing, the referee issued four separate decisions upholding the Bureau’s decisions. The Board affirmed the referee and this appeal followed. Section 203(b) of the Emergency Act provides in pertinent part, that individuals in an instructional capacity are ineligible to receive benefits between two successive years if: [280] (1) such individual performed services in any such capacity for any educational institution or agency in the first of such academic years or terms; and (2) such individual has a contract to perform services in any such capacity for any educational institution or agency for the later of such academic years or terms.2 26 U.S.C. §3304 Note. The contract referred to in the statute need not be a formal written contract, but can consist of an implied agreement or mutual commitment between the teacher and the employer. Ortiz v. Unemployment Compensation Board of Review, 42 Pa. Commonwealth Ct. 234, 400 A.2d 685 (1979). In the instant case the referee made the following finding of fact with respect to each of the claimants: In accordance with past practice and policy, a mutual commitment existed between the claimant and the Board of Education whereby the claimant would return to her former position unless notified otherwise. The Board accepted this finding and it is therefore binding on this Court if it is supported by substantial evidence. Rodites v. Unemployment Compensation Board of Review, 34 Pa. Commonwealth Ct. 128, 382 A.2d 1287 (1978). The record indicates that the claimants had not re' ceived notice that their services had been terminated, they had not notified the Board of Education that [281] they would not return, and as a matter of fact they all did return in September of 1975. Furthermore, in her application for benefits claimant Pickersgill3 indicated that she intended to return to work if “not layed-off” [sic]. In a closely analogous case, Hyduchak v. Unemployment Compensation Board of Review, 35 Pa. Commonwealth Ct. 575, 387 A.2d 669 (1978), we held that non-tenured public school teachers were ineligible for unemployment benefits during the summer months because they had an implied agreement with the school authorities to return to their positions in the fall. In that ease, as here, the claimants did not have a written contract, were non-tenured and were not officially notified until late in the summer that they were to return to their teaching positions. The referee nevertheless found that they had a reasonable expectation of employment after the summer recess. We believe that the facts of the present case are so similar to those present in Hyduchak, supra, that our decision in that case compels us to affirm the Board’s decision here. We also believe that sufficient evidence existed in the record to justify the Board’s conclusion that the claimants were not available for work within the meaning of Section 401(d) of the Act. We have previously held that school employees are generally not eligible for unemployment benefits during the summer months because they are not then available for suitable work without limitation and thus are not actually and permanently attached to the labor force. Davis v. Unemployment Compensation Board of Review, 39 Pa. Commonwealth Ct. 146, 394 A.2d 1320 (1978); Miller v. Unemployment Compensation Board of Re [282] view, 34 Pa. Commonwealth Ct. 536, 383 A.2d 1303 (1978); Chickey v. Unemployment Compensation Board of Review, 16 Pa. Commonwealth Ct. 485, 332 A.2d 853 (1975). The fact that the claimant Pickers-gill indicated that she would have accepted full-time work during the summer and therefore not return to school in September is not dispositive of the issue because the referee apparently believed that all the claimants expected and intended to return to their school positions. The issue of availability is one of fact, Calvano v. Unemployment Compensation Board of Review, 29 Pa. Commonwealth Ct. 79, 368 A.2d 1367 (1977), with the burden of proving availability on the claimant. Because we believe that the Board here did not capriciously disregard competent evidence in making the finding of non-availability, we must sustain it. Koba v. Unemployment Compensation Board of Review, 29 Pa. Commonwealth Ct. 264, 370 A.2d 815 (1977). Accordingly, we affirm the denial of benefits. Order. And Now, this 26th day of April, 1979, the orders of the Unemployment Compensation Board of Review, denying benefits to Pamela M. Scholtz, Ellen C. Bancroft, Patricia Jean Pickersgill, and Janice D. Running are affirmed. Footnotes [1] Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §801(d). [2] Significantly, the law has since been amended to provide that benefits will not be payable “if there is a contract or reasonable assurance that any such individual will perform services in any such capacity for any educational institution in the period of such academic years or terms.” Section 203(b) of that Act, added by the Act of October 20, 1976, Pub. L. No. 94-566, 90 Stat. 2760, 26 U.S.C. §3304(a) (6) (A) (i) (emphasis added). [3] Ms. Pickersgill’s claim was designated as the “lead case” at the hearing before the referee, and therefore, only her application for benefits was made part of the record.