Scholtz v. Commonwealth

Dissenting Opinion by

Judge DiSalle :

I respectfully dissent. I disagree with the majority’s conclusion that claimants had a reasonable expectation of being employed the following school year and thus were not available for work within the meaning of the Act.

In Chickey v. Unemployment Compensation Board of Review, cited by the majority, Judge Kramer wrote that “ [i]f the employees in this case had made an *283application for unemployment compensation whereby they had indicated that they were available for suitable work without any limitation, then there is little doubt they would have been entitled to benefits.” 16 Pa. Commonwealth Ct. at 494, 332 A.2d at 857. In both her application for assistance and her testimony before the Board, claimant Pickersgill, the group’s spokesperson, stated that her availability for work was unlimited and unrestricted and that had she received an offer for a permanent job she would have accepted it.

While this case may be factually similar to Hyduchak v. Unemployment Compensation Board of Review, supra, I think it can be distinguished. In Hyduchak, we looked closely at statements made by the claimants at the hearing and decided that each believed he had an implied agreement to return in the fall. This expectation in the mind of each claimant justified the board in finding a mutual commitment. But the record here does not support such a finding. When the school term ended in June of 1975, claimants were given no indication whatsoever that they would have jobs waiting for them in September. In fact, from June 13 to the beginning of the September term, they received no communication one way or the other from the Board of Education. Having failed to find a permanent job that summer, claimant Pickersgill testified that when she returned to school in September, she did so on her own, with merely the hope that she would get her old job back. Adding to that her statement that had she been offered a permanent job in July or August, she would most certainly have accepted it, it becomes clear that claimants here did not have the same expectation to return to work as did the claimants in Hyduchak.

I would reverse the denial of benefits.

Judge Craig joins in this dissent.