Aronson v. Com. Unemployment Compensation Bd. of Review

• Decision Date: 20 January 1981
• Citation: 424 A.2d 972,56 Pa.Cmwlth. 177
• Parties: Ellen A. ARONSON, Petitioner, v. COMMONWEALTH of Pennsylvania UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, Respondent.
• Court: Pennsylvania Commonwealth Court

Page 972

424 A.2d 972

56 Pa.Cmwlth. 177

Ellen A. ARONSON, Petitioner, v. COMMONWEALTH of Pennsylvania UNEMPLOYMENT COMPENSATION BOARD

OF REVIEW, Respondent.

Commonwealth Court of Pennsylvania.

Argued Dec. 8, 1980.

Decided Jan. 20, 1981.

[56 Pa.Cmwlth. 178] Elliot A. Strokoff, Handler & Gerber, P. C., Harrisburg, for petitioner.

Richard Wagner, Gen. Counsel, Steven R. Marcuse, Unemployment Compensation Bd. of Review, Harrisburg, for respondent.

Before WILKINSON, CRAIG and PALLADINO, JJ.

CRAIG, Judge:

The only question before us is whether the Unemployment Compensation Board of Review (board) correctly concluded that claimant Ellen Aronson, a substitute teacher, was ineligible for benefits during the summer of 1978, under Section 402.1(1) of the Unemployment Compensation Law, 43 P.S. § 802.1(1), ¹ [56 Pa.Cmwlth. 179] because she had a reasonable assurance of returning to work in the same capacity for the next school term.

Section 402.1(1) now 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.

The concept of "reasonable assurance" is not defined in the statute. However, we have held that, absent a formal agreement to rehire, 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. Langer v. Unemployment Compensation Board of Review, 47 Pa.Cmwlth. 88, 407 A.2d 123 (1979). In Langer, we distinguished a reasonable expectation of re-employment from mere hope of returning in the fall. See Cawley v. Unemployment Compensation Board of Review, 36 Pa.Cmwlth. 405, 387 A.2d 1023 (1978).

Claimant first began working as a substitute teacher for the school district on January 10, 1978, replacing a teacher who had taken an indefinite leave of absence. The position was claimant's first; her name had initially appeared on the employer's substitute teacher list in the fall of 1977. Because the regular teacher extended her leave of absence, claimant retained the substitute position until the end of the school year.

On July 5, 1978, the school district sent the claimant a letter which explained that the district was "reviewing"[56 Pa.Cmwlth. 180] the substitute teacher list to determine the availability of current substitutes for continued employment with the employer. The letter requested that the claimant indicate whether she would be "willing to accept employment as a substitute teacher in the coming year." The letter concluded by stating that, "to have your appointment as a substitute teacher approved by the School Board," the claimant must return her response before

August 1, 1978. She responded affirmatively, before the date specified

However, by making repeated inquiries of the employer as to whether she would be re-employed in the fall, the claimant ultimately learned only that the regular teacher had permanently resigned, and that the qualification for filling the position had been raised to a master's degree, beyond her reach.

In testimony, when asked if the district ever sent the claimant any assurance that she would be called as a substitute in the fall of 1978, the employer representative did not answer responsively but merely stated that the district "cannot guarantee anyone on our substitute list that they will have a job." With respect to her name being on the substitute list, the employer representative acknowledged that it was "possible that she won't even be called once;" the possibility of the claimant being recalled to the particular position of the previous year was ruled out altogether. The record shows that, during cross-examination of the employer representative by claimant's counsel, the referee interrupted with statements and questions which were clearly leading in nature. Although we cannot condone that mode of conducting the hearing, we will nevertheless accept at face value the answer which the referee finally elicited from the employer's representative. That answer was:

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