56 Pa. Commw. 291 | Pa. Commw. Ct. | 1981
Opinion by
An Unemployment Compensation Board of Review decision awarding benefits to a school bus driver whose working days were lost to inclement weather is reversed.
Catherine A. Baratta, a school bus driver, was employed by the Penn Hills School District both prior to and after the controversial school days during the 1977-78 school year. Repeated snowstorms cancelled
The referee and the Board affirmed an award of benefits made by the Office of Employment Security, determining that the claimant was (1) “unemployed” within the definition proscribed by Section 4(u)(II) of the Unemployment Compensation Law
Penn Hills argues that benefits are not due a public school employee whose school year work schedule is simply revised if there is no actual loss of work or wages. Penn Hills contends the Board would convert the unemployment compensation scheme into a “bonus” system whereby a driver would make full
The issue is whether Section 401(d) allows a school bus driver no compensation for “snow days.”
We have undisputably held that the test of “availability” requires that a claimant not only be ready, willing and able to accept either temporary or permanent suitable employment at any time by another employer, see Tokar v. Unemployment Compensation Board of Review, 35 Pa. Commonwealth Ct. 241, 385 A.2d 634 (1978), and Ritter v. Unemployment Compensation Board of Review, 34 Pa. Com
Further, as to availability we have consistently denied unemployment compensation benefits for school employees who fully expect and intend to return to work at the commencement of the next school term.
The Board attempts to distinguish this line of cases, representing that prescheduled summer and other between-term, non-work periods on the school calendar are distinct from the sudden break in work resulting from an unforeseen weather emergency. Facially, there is cause for pursuing this reasoning but to our reading, Section 401(d)’s implication is clear, especially considering the circumstances. A claimant must be actually and currently attached to the labor force so as to be ready and willing to accept suitable employment. Clearly, Baratta’s school term was entirely dependent upon a contractually-mandated school year consisting of 180 instructional days and 12 hours of safety meetings conducted by the employer. For the present year and, in fact, for the last 11 years, she had counted on working at least a 180-day school year. In fact, Baratta not only intended and expected to, but
Finally, the Board expresses concern that a Section 401(d) denial of benefits invites charges of denial of “equal treatment” of school employees under Section 404(g) of the Law, 43 P.S. §804(g), these consequences being “out of conformity” with corresponding federal law. This concern is misplaced. School employees are subject to those same standards and restrictions that any other unemployment compensation claimant must face, no more —no less. There is no irrebuttable presumption against school employees, Fitterling v. Unemployment Compensation Board of Review, 41 Pa. Commonwealth Ct. 113, 398 A.2d 744 (1979), nor is there any significant difference in treatment between the line of the studied school employee cases and those decisions on similar claims of industrial employees in the private sector.
Reversed.
Order
This Court’s prior Opinion and Order dated February 18, 1980, is withdrawn, and the Unemployment Compensation Board of Review order dated July 28, 1978, granting benefits to Catherine A. Baratta, is hereby reversed.
Amended Order
Now, February 17, 1981, our prior Order dated February 3, 1981, is amended as follows:
The present Opinion and Order effectively withdraws and replaces this Court’s prior Opinion and Order in Penn Hills School District v. Unemployment Compensation Board of Review, 410 A.2d 1320 (1980). This case was not previously reported in the Pa. Commonwealth Court Reports. .
School was not held and consequently Baratta did not work on January 9, 10, 11, 18, 20, 26 and 27, 1978, corresponding to the compensable weeks ending January 14, 21 and 28, 1978.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §753(u), provides in pertinent part:
(u) ‘Unemployed.’
An individual shall be deemed unemployed ... (II) with respect to any week of less than his full-time work if the remuneration paid or payable to him with respect to such week is less than his weekly benefit rate plus his partial benefit credit.
43 P.S. §801(d) explains that:
Compensation shall be payable to any employe who is or becomes unemployed, and who—
(d) Is able to work and available for suitable work....
Penn Hills maintains that the “make-up” day requirement is more than a mere possibility, rather it is legislatively mandated insofar as Section 1501 of the Public School Code of 1949, Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §15-1501, requires “at least one hundred eighty (180) days of instruction for pupils” and provides that “[n]o days on which the schools are closed shall be counted as days taught....” But see Scanlon v. Mount Union Area Board of School Directors, 51 Pa. Commonwealth Ct. 83, 415 A.2d 96 (1980), and Scanlon v. Mount Union Board of School Directors, 47 Pa. Commonwealth Ct. 409, 408 A.2d 555 (1979).
Our scope of review in unemployment compensation cases is clear. Since the question of claimant’s availability for work was resolved by the fact finder, we can only overturn the Board’s decision for mistakes of fact, errors of law, or findings which are unsupported by substantial evidence. See Unemployment Compensation Board of Review v. Molitoris, 24 Pa. Commonwealth Ct. 360, 364, 356 A.2d 863, 865 (1976).
See Davis v. Unemployment Compensation Board of Review, 39 Pa. Commonwealth Ct. 146, 394 A.2d 1320 (1978) (cafeteria worker); Sude v. Unemployment Compensation Board of Review,
See Lybarger Unemployment Compensation Case, 418 Pa. 471, 211 A.2d 463 (1965), aff’g 203 Pa. Superior Ct. 336, 201 A.2d 310 (1964). And see Holets v. Unemployment Compensation Board of Review, 39 Pa. Commonwealth Ct. 38, 394 A.2d 1299 (1978).