35 Pa. Commw. 575 | Pa. Commw. Ct. | 1978
Opinion by
Five cases involving the eligibility of public school teachers for unemployment compensation during the summer months when they are not teaching have been consolidated for purposes of argument and decision by this Court. Each of the five claimants has appealed from a decision of the Unemployment Compensation Board of Review (Board) denying him benefits.
Although the procedural history differs somewhat in each case, these five claimants can be divided into two groups based upon the legal issues involved: Group I, consisting of claimants George Hyduchak, David Karr, and Albert Yisoeky, who were denied
Our scope of review, of course, is limited in unemployment compensation cases to a determination of whether or not an error of law was committed, and, absent fraud, to a determination of whether or not findings of fact are supported by the evidence. Westfall v. Unemployment Compensation Board of Review, 32 Pa. Commonwealth Ct. 619, 379 A.2d 1389 (1977).
The three claimants in Group I had worked for either two or three years in the Lackawanna County Vocational Technical School at the time they applied for unemployment benefits in June, 1976. None of the three had yet been tenured and none worked under a written contract. None were officially notified until late in the summer that 'they were to report to work for the next school term, but each admitted either on his application form or at the referee’s hearing that he had some expectation that he would be returning to work.
An individual who performs services in an instructional, research, or principal administrative capacity for an educational institution or agency shall not be eligible to receive a payment of assistance or a waiting period credit with respect to any wéek commencing- during the period between two successive academic years...if—
*579 (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.3
The three findings crucial to the Board’s determinations in these cases are:
The claimant’s [Hyduchak’s] employment with Lackawanna County Area Vo-Tech School has not been terminated.
[TJhere is an implied agreement that he [Karr] will return to his teaching position in September, 1976.
The claimant [Visocky] was under contract with his employer until June 30,1976 and he expects to return to his school position in September, 1976.
While we would note that the findings could have been more precise with respect to the presence or absence of a “contract to perform services,” we believe that each record here contains sufficient evidence to support the findings made by the referee and adopted by the Board. Moreover, we do not believe that the Board erred as a matter of law in denying benefits based on the claimants’ expectations of returning to work even in the absence of a written contract. It is clear that under past practices the school issued no written eon-
The two claimants in Group II
An individual shall be deemed unemployed (I) with respect to any week (i) during which he performs no services for which remuneration is paid or payable to him and (ii) with respect to which no remuneration is paid or payable to him....
In addition to the customary factual finding describing the claimant’s job and salary, the only other finding of fact made by the referee and adopted by the Board was identical in each case:
Claimant receives his salary over a 12-month period and was paid during the summer months.
The claimants here do not challenge the accuracy of this finding but argue that it should not alter their status as “unemployed.” A representative of the school district testified that all teachers are given the option of receiving a lump sum payment equaling the biweekly pay normally received over the summer months or of continuing to receive bi-weekly checks throughout the summer. The claimants elected this latter option, and other benefits such as health-and-life insurance also continued during the summer regard-less of the teacher’s election with respect to wages. It
The standard for determining eligibility as an “unemployed” individual was discussed by our Supreme Court in Gianfelice Unemployment Compensation Case, 396 Pa. 545, 153 A.2d 906 (1959), which concerned the receipt of pension benefits. There, as in the cases presently before us, the claimant clearly performed no services during the claim week and 'the issue there, as here, was whether or not the claimant qualified under subsection (ii). The Supreme Court defined “remuneration” as “payment for services performed.” Gianfelice, supra, 396 Pa. at 555, 153 A.2d at 911. We believe that the wages received by the claimants here must certainly be considered “remuneration”
For the reasons set forth above, the Board orders denying benefits to all five claimants will be affirmed.
Order
And Now, this 2nd day of June, 1978, the orders of the Unemployment Compensation Board of Review are hereby affirmed.
Act of December 5, 1936, Second Blx. Sess., P.D. (1937) 2897, as amended, 43 P.S. §751 et seq.
Claimant Hyduchak answered the question, “Do you expect to return to your school job at the end of summer?” by checking the “yes” block and writing in the words “if work is available.” Claimant Karr answered the referee’s question, “Do you agree that there is at least an implied agreement that you will be returning to your
Amendments effective with respect to services performed after December 31, 1977, have changed this language to “if there is a contract or 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.”
Disqualification under Section 4(u) of the Act was specifically-given as an additional reason for denying benefits to Claimant Visoeky.
A majority of this Court, with one dissenting vote, has held that vacation pay is “remuneration.” See Unemployment Compensation Board of Review v. Buss, 26 Pa. Commonwealth Ct. 160, 362 A.2d 1113 (1976).