North Hills S.D. v. UCBR ( 2022 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
North Hills School District, :
:
Petitioner :
:
v. : No. 700 C.D. 2021
: Submitted: March 4, 2022
Unemployment Compensation :
Board of Review, :
:
Respondent :
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: April 13, 2022
North Hills School District (Employer) petitions for review of the order
of the Unemployment Compensation Board of Review (Board) affirming the
decision of a Referee who determined that Erin Traynor (Claimant) is not ineligible
for benefits under Section 402.1(1) of the Unemployment Compensation Law
(Law).1 We affirm.
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, added by the
Act of July 6, 1977, P.L. 41, 43 P.S. §802.1(1). Section 402.1(1) of the Law states, in pertinent
part:
(1) With respect to service performed after December 31, 1977, in
an instructional . . . capacity for an educational institution, benefits
(Footnote continued on next page…)
On August 10, 2020, Claimant filed an online application for benefits
for the waiting week ending August 15, 2020. Certified Record (CR) at 3, 6-10. On
December 10, 2020, the Department’s Office of Unemployment Compensation
Benefits issued a Notice of Determination (Determination) in which it found that
Claimant was not ineligible for benefits under Section 402.1 of the Law because
“Claimant d[id] not have reasonable assurance of returning [to work] following the
[summer] break.” Id. at 14. On December 23, 2020, Employer appealed the
Determination alleging, in relevant part:
shall not be paid based on such services for any week of
unemployment commencing during the period between two
successive academic years . . . to any individual if such individual
performs such services in the first of such academic years or terms
and if there is . . . 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.
[(Emphasis added).]
In turn, Section 65.161(a) of the Department of Labor and Industry’s (Department)
regulations states, in relevant part:
(a) For purposes of [S]ection 402.1 of the [L]aw (43 P.S. §802.1), a
. . . reasonable assurance that an individual will perform services in
the second academic period exists only if both of the following
conditions are met:
(1) The educational institution . . . provides a bona fide offer of
employment for the second academic period to the individual.
(2) The economic terms and conditions of the employment offered
to the individual for the second academic period are not substantially
less than the terms and conditions of the individual’s employment
in the first academic period.
34 Pa. Code §65.161(a).
2
The reasonable assurance issue states that [C]laimant did
not return following the school break. The included
[September 4, 2020] letter [from Employer’s
Superintendent] demonstrates that [C]laimant was, in fact,
rehired as a substitute teacher for the 2020-2021 school
year.
CR at 20.
On January 28, 2021, a hearing was conducted before the Referee
during which Claimant testified, and Employer offered the testimony of Pamela
LaBrasca, Employer’s Administrative Assistant of Human Resources, along with
the Superintendent’s September 4, 2020 letter offering Claimant employment as a
substitute teacher for the 2020-2021 school year, effective August 25, 2020, and call
logs regarding Claimant’s substitute assignments during the 2020-2021 school year.
CR at 58-61, 65, 69-71, 74-81.2 LaBrasca testified, inter alia, that Claimant resigned
her employment as a teacher with Employer on January 10, 2020, and that she began
substitute teaching for Employer on January 13, 2020. Id. at 74. LaBrasca stated
that Claimant’s last day of work for Employer in the 2019-2020 school year was
March 11, 2020. Id. With respect to the Superintendent’s September 4, 2020 letter,
LaBrasca testified:
This letter is a letter that we send out to all of our
substitutes, they get a reasonable assurance letter over the
2
Specifically, the Superintendent’s September 4, 2020 letter states, in pertinent part:
Please accept this letter as an administrative appointment to the
position of substitute teacher at the rate of $95/day effective August
25, 2020, through the end of the 2020-21 school year. . . .
Your appointment was ratified at the September 3, 2020 meeting by
the Board of School Directors.
CR at 65.
3
summer, stating that they are planning on coming back,
unless we do not hear from them at that time, we terminate
them, and [if] we do hear from them, then we Board
approve them and Board Administrative [sic] appoint
them to the position of a substitute teacher. We send them
this note to let them know that they were appointed to [be]
a substitute teacher for the entire school year and give
them their rate.
Id. at 75-76. Claimant denied that she received such reasonable assurance to return
to the same or similar position following the school break. Id. at 80-81.
On February 2, 2021, the Referee issued a Decision/Order affirming the
Determination that Claimant is not ineligible for benefits under Section 402.1 of the
Law. CR at 87-92. On February 17, 2021, Employer appealed the Referee’s
Decision/Order to the Board. Id. at 94-101.
On May 28, 2021, the Board issued a Decision and Order affirming the
Referee’s Decision/Order in which it made the following pertinent findings of fact:
1. [C]laimant was last employed as a substitute teacher
by [Employer] from January 13, 2020, at a final rate of
$95/day, and her last day of work was March 11, 2020.
2. [C]laimant previously worked for [E]mployer as a
teacher, resigned as a teacher effective January 10, 2020,
but continued to work as a substitute teacher beginning
January 13, 2020.
3. [E]mployer’s 2020-2021 school year began on
August 25, 2020.
4. [C]laimant did not receive reasonable assurance of
continuing work for [E]mployer as a substitute teacher in
the 2020-2021 school year until she was informed, by
letter dated September 4, 2020, that [E]mployer’s Board
of School Directors ratified her appointment as a substitute
teacher on September 3, 2020.
CR at 103.
4
Based on the foregoing, the Board determined:
Critically, this case involves [C]laimant’s eligibility for
benefits during the summer school break, beginning with
the week ending August 15, 2020-and not the weeks
beginning with the new school term. The computerized
call logs submitted by [E]mployer to show that [C]laimant
was contacted about substitute assignments from August
25, 2020-January 4, 2021, are not relevant to [C]laimant’s
eligibility for benefits for the waiting week ending August
15, 2020, under Section 402.1(1) of the Law, other than to
possibly prove that a previous offer of reasonable
assurance was not illusory. The real question in this case
is whether [E]mployer offered [C]laimant, who had been
in her first year as a substitute teacher, reasonable
assurance of returning to employment before or over the
summer break of returning to work in the same or similar
capacity in the next school year.
[E]mployer both maintained that its September 4, 2020
letter to [C]laimant establishes that she had reasonable
assurance that “all substitutes get a reasonable assurance
letter over the summer.” The reasonable assurance letter,
alluded to by [E]mployer’s witness, does not appear in the
record. Moreover, [C]laimant denied receiving reasonable
assurance of returning to work with [E]mployer in the
same or similar position.
The Board gives greater weight to [C]laimant’s testimony
on the question of reasonable assurance. A letter offering
reasonable assurance would seem to be critical in this type
of case. Therefore, the Board is unwilling to infer
reasonable assurance through a general reference to an
earlier letter not appearing in the record. As such,
[C]laimant cannot be denied benefits during the period
between two successive academic years or school terms,
as the record lacks credible or sufficient proof of
reasonable assurance having been extended to [C]laimant
before the beginning of the new school year.
CR at 104. Accordingly, the Board issued an order affirming the Referee’s
Decision/Order, id. at 105, and Employer filed the instant petition for review.
5
On appeal,3 Employer claims that the Board erred as a matter of law in
affirming the Referee’s Decision/Order and that the Board’s Decision and Order are
not supported by substantial evidence. Specifically, the entirety of Employer’s
argument is as follows:
In the instant matter, []Claimant received a letter
dated September 4, 2020[,] confirming that she had been
offered the position of a substitute teacher, as well as the
pay rate satisfying the economic terms as required by
statute. The September 4, 2020 letter states that the offer
is effective August 25, 2020 (CR 65), which corresponds
directly with the first day of school according to
[Employer’s] academic calendar. (CR 63) Boards of
education meet monthly, and in this matter [it] took
official action at [its] earliest opportunity to do so to
approve the substitute position and made the assurance of
the same effective the same day as the start of the
academic year.
Brief of Petitioner at 1.
As outlined above, Section 402.1(1) of the Law states, in pertinent part:
[B]enefits shall not be paid based on such services for any
week of unemployment commencing during the period
between two successive academic years . . . to any
individual if such individual performs such services in the
first of such academic years . . . and if there is . . . 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.
43 P.S §802.1(1) (emphasis added).
Considering Employer’s appellate claims, “[t]his case turns on the
intent of Section 402.1(1) of the Law, as expressed in its words. 1 Pa. C.S.
3
Our scope of review is limited to determining whether constitutional rights were violated,
whether an error of law was committed, and whether necessary findings of fact are supported by
substantial evidence. Kirkwood v. Unemployment Compensation Board of Review, 525 A.2d 841,
843-44 (Pa. Cmwlth. 1987).
6
§1921(a).” Kolenich v. Unemployment Compensation Board of Review, 269 A.3d
615, 623 (Pa. Cmwlth. 2021). With respect to disqualification under Section
402.1(1), this Court has explained:
The basic principle is that “service for educational
institutions” qualifies for unemployment benefits. There
is an exception in subsection (1) for benefits that would
otherwise be payable during a school break, so long as the
employee receives “reasonable assurance” of a job after
the break. Where school employees are “reasonably
assured of resuming employment in a learning institution”
after a break, they are disqualified from receiving benefits
during the break. Penn Hills School District v.
Unemployment Compensation Board of Review, 437 A.2d
1213, 1217 (Pa. 1981).
269 A.3d at 619.
In construing Section 402.1(1)’s terms, this Court has observed:
[T]he Board gives a broad construction to the exception in
Section 402.1(1) from eligibility for benefits. However,
exceptions in a statute are to be narrowly construed. See
Phillips v. State Ethics Commission, 470 A.2d 659, 661
(Pa. Cmwlth. 1984) (stating that “remedial legislation [] is
to be liberally construed . . . and exclusions under the [a]ct
should be narrowly, rather than broadly, determined”); see
also, e.g., Penn Hills School District, 437 A.2d at 1215
(holding that an unemployed worker can be denied
benefits only by explicit language in the Law that clearly
and plainly excludes coverage).
269 A.3d at 622-23.
In light of the foregoing, it is clear that Employer’s construction of the
exception in Section 402.1(1) is untenable. By its plain terms, in order for Claimant
to be ineligible under Section 402.1(1), she must have received from Employer “a
reasonable assurance” of continued employment in “the second of such academic
years” before the expiration of “the period between two successive academic years,”
7
and before the commencement of “second of such academic years.” 43 P.S.
§802.1(1). Based on the Board’s factual findings,4 Claimant did not receive from
Employer any such “reasonable assurance” of continued employment in the 2020-
2021 academic year during the period of unemployment between the 2019-2020 and
the 2020-2021 academic years. Employer’s post hoc September 4, 2020 letter
simply cannot be relied upon to render Claimant ineligible to receive benefits for the
waiting week ending August 15, 2020, during the break between the academic years,
and before the beginning of the 2020-2021 academic year on August 25, 2020.
Accordingly, the Board’s order is affirmed.
MICHAEL H. WOJCIK, Judge
4
We will not accede to Employer’s request to review the Board’s credibility determinations
or to make additional findings based on assertions in its appellate brief. As this Court has stated:
[I]t is well settled that the Board is the ultimate finder of fact in
unemployment compensation proceedings. Thus, issues of
credibility are for the Board which may either accept or reject a
witness’ testimony whether or not it is corroborated by other
evidence of record. Findings of fact are conclusive upon review
provided that the record, taken as a whole, contains substantial
evidence to support the findings. This Court must examine the
evidence in the light most favorable to the party [that] prevailed
before the Board, and to give that party the benefit of all inferences
that can be logically and reasonably drawn from the testimony.
Chapman v. Unemployment Compensation Board of Review, 20 A.3d 603, 607 (Pa. Cmwlth. 2011)
(citations omitted). As outlined above, the Board’s findings are amply supported by evidence in
the certified record of this case, and these findings support the Board’s determination that Claimant
is not ineligible for benefits under Section 402.1(1).
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
North Hills School District, :
:
Petitioner :
:
v. : No. 700 C.D. 2021
:
Unemployment Compensation :
Board of Review, :
:
Respondent :
ORDER
AND NOW, this 13th day of April, 2022, the order of the
Unemployment Compensation Board of Review dated May 28, 2021, is
AFFIRMED.
__________________________________
MICHAEL H. WOJCIK, Judge