69 Pa. Commw. 521 | Pa. Commw. Ct. | 1982
Opinion by
Sharon R. Bornstein (Claimant) has filed this Petition for Review from a decision of the Unemployment Compensation Board of Review (Board) affirming a referee’s decision
For purposes of this appeal, Claimant had been employed as a Long Term Substitute Teacher
Section 402.1(1) bars an instructional employee in an educational institution from benefits for periods between successive academic years or terms “if such individual performs such services in the first of such academic years or terms and if there is a contract or a reasonable assurance that such individual will perform services in any such capacity for any educational institution in the second of such academic years or terms.”
“Reasonable assurance” is not defined in the statute. However, this Court has, on a variety of occasions, set forth its interpretation of that term. To begin with, “there must be some evidence of mutual commitment or assurance between the teacher and employer to recall the former, so that the teacher can be said to have a reasonable expectation of returning to employment in the next term.” Aronson v. Unemployment Compensation Board of Review, 56 Pa. Commonwealth Ct. 177, 179, 424 A.2d 972, 973 (1981). There must be more than a mere hope of returning in the fall. Id. Section 402.1(1) does not require a guarantee of future employment, only a reasonable assurance and what constitutes “assurance” is a matter to be determined by the Board based upon relevant facts. Goralski v. Unemployment Compensation Board of Review, 48 Pa. Commonwealth Ct. 39, 42, 408 A.2d 1178, 1180 (1979). A number of factors have been considered relevant in determining reasonable assurance: employment history, Neshaminy School District v. Unemployment Compensation Board of Review, 57 Pa. Commonwealth Ct. 543, 426 A.2d 1245 (1981); Aronson; Louderback v. Unemployment Compensation Board of Review, 48 Pa. Commonwealth Ct. 501, 409 A.2d
In light of all of the above standards, we feel constrained to order a remand in this case. It is clear from the referee’s findings that Claimant was informed that her position as a Long Term Substitute was to be reverted to that of a Per Diem Substitute and that the offer of such work would be based on the rules covering Per Diem Substitutes. Claimant sought to show, however, that under these per diem rules, she would have low seniority and thus no real assurance of future employment. Aronson; Louderback. No findings were made by the Board in this regard. It is also clear that Claimant did fill out a form indicating her availability for per diem work. There is no finding by the Board, however, concerning whether this form resulted in a mutual commitment or assurance of recall. Aronson. There is another letter in the record from the Employer which may show mutual commitment, but there is a dispute over whether Claimant received that letter prior to the weeks in question and there is nothing in the Board’s findings which would resolve that dispute.
Order
The order of the Unemployment Compensation Board of Review, Decision No. B-199155, is vacated and the case is hereby remanded for the making of further findings in accordance with this opinion.
The referee’s decision was adopted by the Board as its decision.
As such, she was employed every day of the school year.
Claimant has argued that this Court’s decision in Foti v. Unemployment Compensation Board of Review stands for the proposition that if a teacher actively seeks employment during summer months then the teacher is available for work under Section 401(d) of the Law, 43 P.S. §801(d), and thus eligible for benefits. Suffice to say that availability for work was not at issue in this case. We would note that our Supreme Court has recently disapproved of a “short period/intent to return” disqualification under Section 401(d). See Penn Hills School District v. Unemployment Compensation Board of Review, 496 Pa. 620, 437 A.2d 1213 (1981).