IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Rose Tree Media School District, :
Petitioner :
:
v. :
:
Unemployment Compensation :
Board of Review, : No. 63 C.D. 2021
Respondent : Argued: June 22, 2022
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION BY
JUDGE COVEY FILED: August 8, 2022
Rose Tree Media School District (Employer) petitions this Court for
review of the Unemployment Compensation (UC) Board of Review’s (UCBR)
December 30, 2020 order affirming the Referee’s decision that found Catherine C.
Hall (Claimant) eligible for UC benefits under Section 402.1 of the UC Law (Law)1
and reversed the Altoona UC Service Center’s determination that found Claimant
ineligible for UC benefits and assessed a fault overpayment under Section 804(a) of
the Law.2 The issue before this Court is whether Claimant is a year-round employee
under Section 402.1 of the Law.3
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, added by
Section 5 of the Act of July 6, 1977, P.L. 41, 43 P.S. § 802.1 (relating to benefits based on service
for educational institutions).
2
43 P.S. § 874(a) (relating to repayment of unwarranted UC benefits).
3
Employer includes two additional issues: (1) whether Section 402.1 of the Law prohibits
Claimant from receiving UC benefits; and (2) whether Scotland School for Veterans’ Children v.
Unemployment Compensation Board of Review, 578 A.2d 78 (Pa. Cmwlth. 1990), is contrary to
Facts
On December 6, 2001, Employer hired Claimant as a full-time bus
driver. For the past several years, Claimant has worked for Employer during the
summer as a bus driver. However, due to the COVID-19 pandemic, Employer had
no bus driver work available during the summer of 2020. On or about May 26, 2020,
Employer notified Claimant that she would have a position as a bus driver during
the 2020-2021 school year. Employer paid Claimant income through claim week
ending June 27, 2020.
On June 21, 2020, Claimant applied for UC benefits. Claimant received
$3,472.00 in UC benefits for claim weeks July 4, 2020 through August 15, 2020.
On August 21, 2020, the UC Service Center issued a Notice of Determination
(Determination) finding that Claimant was ineligible for UC benefits under Section
402.1 of the Law. The Determination stated that Claimant’s unemployment
commenced during the period between successive academic years and that Employer
provided a bona fide offer of work for the next academic year. The UC Service
Center also mailed Claimant a Notice of Fault Overpayment (Notice), stating therein
that Claimant was overpaid $3,472.00 because she was ineligible to receive UC
benefits between two successive academic years.
On September 3, 2020, Claimant appealed from the Determination and
the Notice, arguing that she was entitled to UC benefits because she regularly
worked for Employer in the summer, but she was denied summer work in 2020. A
Referee held a hearing on September 29, 2020. On October 5, 2020, the Referee
reversed the UC Service Center’s Determination and the fault overpayment
Section 402.1 of the Law. See Employer Br. at 4. However, those issues are encompassed in the
discussion of the stated issue.
2
assessment. Employer appealed to the UCBR. The UCBR affirmed the Referee’s
decision. Employer appealed to this Court.4, 5
Discussion
Employer argues that the UCBR erred by basing its decision solely on
the fact that Claimant had worked for Employer during previous summers, when
Employer gave Claimant reasonable assurance of employment for the following
academic year. Employer contends that the UCBR ignored the plain language of
Section 402.1 of the Law, prior decisions of this Court, and the undisputed record
facts. Employer emphasizes that Claimant is a 10-month employee whose work year
is delineated by the terms of a Collective Bargaining Agreement (CBA). Employer
declares that the fact that Employer has made work available during the summer
months in the past, for which employees can volunteer, but are not required to
volunteer, does not make Claimant a year-round employee. The UCBR rejoins that
Section 402.1 of the Law does not apply to Claimant because she is a non-
professional employee of a school who regularly worked over the summer for at
least the past five years. The UCBR cites Scotland School for Veterans’ Children v.
Unemployment Compensation Board of Review, 578 A.2d 78 (Pa. Cmwlth. 1990),
to support its position.
4
“‘Our scope of review is limited to determining whether constitutional rights were
violated, whether an error of law was committed, or whether the findings of fact were unsupported
by substantial evidence.’ Miller v. Unemployment Comp. Bd. of Rev[.], 83 A.3d 484, 486 n.2 (Pa.
Cmwlth. 2014).” Talty v. Unemployment Comp. Bd. of Rev., 197 A.3d 842, 843 n.4 (Pa. Cmwlth.
2018).
5
Claimant intervened and filed a brief with this Court. Pennsylvania School Boards
Association Insurance Trust and Pennsylvania School Boards Association filed an amici curiae
brief with this Court in support of Employer’s position.
3
Initially, Section 402.1 of the Law provides, in relevant part:
Benefits based on service for educational institutions
. . . shall as hereinafter provided be payable . . . ; except
that:
....
(2) With respect to services performed after October 31,
1983, in any other capacity [than an instructional,
research, or principal administrative capacity] for an
educational institution, benefits shall not be paid on the
basis of such services to any individual for any week
which commences during a period between two successive
academic years or terms if such individual performs
such services in the first of such academic years or
terms and there is a reasonable assurance that such
individual will perform such services in the second of
such academic years or terms [(reasonable assurance
doctrine)].
43 P.S. § 802.1 (emphasis added).
In Scotland School, this Court held that, because a “[non-]instructional,
research, or principal administrative capacity” school employee, i.e., a house parent,
had regularly worked in the summer as a house parent for the last two years, the
reasonable assurance doctrine did not apply. 43 P.S. § 802.1(1). Specifically, the
Scotland School Court held: “The evidence of regular (though not full-time) summer
scheduling[] supports the finding that she was not an employee of the academic year
but was employed year[ ]round, and obviates any further discussion on the
‘reasonable assurance’ doctrine of Section 402.1(2) [of the Law].” Scotland Sch.,
578 A.2d at 79.
Here, Claimant has worked as a bus driver for Employer since 2001.
For at least the last five years, Claimant has volunteered and worked the summer
months as a bus driver. If this Court was to follow Scotland School, the evidence of
Claimant’s regular summer work would support the UCBR’s finding that Claimant
4
was a year-round employee, thus obviating any further discussion on the reasonable
assurance doctrine of Section 402.1(2) of the Law.6 See Scotland Sch. However,
because Claimant received reasonable assurance that she would return to work the
following school year, such a ruling would be in clear contradiction of the reasonable
assurance doctrine codified in Section 402.1(2) of the Law and this Court’s
precedent.
In Prunty v. Unemployment Compensation Board of Review, 253 A.3d
349 (Pa. Cmwlth. 2021), this Court recently ruled that a part-time adjunct faculty
member whose employer provided a bona fide offer of work for the next academic
year was ineligible for UC benefits under Section 402.1(1) of the Law for the period
covering a community college’s summer academic session. Therein, the employer
required part-time adjunct professors and instructors who desired to work during the
summer to submit summer availability forms. The claimant submitted her
availability form, wherein she stated she was available to teach any course in her
department during both of the summer 2019 sessions. In various summer terms
before 2019, including 2018, the employer had sufficient student enrollment, and
few available full-time faculty to teach, thereby giving the claimant the ability to bid
on and receive more than one course to teach.7 The claimant did not dispute that she
received a reasonable assurance that she would be working in the employer’s 2019
fall semester. Rather, she argued that the employer’s 2019 summer sessions were
not during the period between two successive academic years, or during a similar
period between two regular terms because the summer term is part of the academic
year, not between two successive academic years, and because the summer term is
a regular term, not a term between two regular terms.
6
This Court notes that in the instant case, Employer did not regularly schedule Claimant
for summer work. Rather, Claimant volunteered for said summer work.
7
The claimant did not teach during either summer session in 2012.
5
The Prunty Court concluded that the employer’s summer term was not
a regular term under Section 402.1(1) of the Law and held:
“Our General Assembly saw fit to disqualify school
employees from receiving benefits during summer and
other term breaks. It is settled law that teachers and other
school employees not working during term breaks who
can reasonably expect to return are not entitled to [UC]
benefits.” [Scotland Sch.], . . . 578 A.2d [at 79] . . .
(citation omitted).
Prunty, 253 A.3d at 357 (emphasis added). Similarly, here, Claimant performed
services for an educational institution that gave Claimant reasonable assurance that
she would return to work the following school year. The fact that Claimant chose to
voluntarily sign-up for summer work does not make her a year-round employee.8
Accordingly, Claimant is disqualified from receiving UC benefits under Section
402.1(2) of the Law.9
Notwithstanding, Claimant argues that educational institutions, like
Employer, are not entitled to a special set of rules where they can employ individuals
for entire calendar years, but not pay UC benefits when those employees become
unemployed through no fault of their own. Claimant further contends that the intent
of Section 402.1(2) of the Law is to disqualify support employees of educational
institutions that traditionally work only the weeks between the fall and spring from
receiving UC benefits during the subsequent summer and other breaks when such
8
To the extent that Scotland School holds otherwise, it is overruled.
9
The Dissent contends that Prunty does not apply because the claimant therein was an
adjunct professor and Scotland School was not raised before the Prunty Court. Although Prunty
involved Section 402.1(1) of the Law, rather than Section 402.1(2) of the Law, both sections
include the codification of the reasonable assurance doctrine. Further, in Prunty, the claimant
argued “that the reasonable assurance doctrine does not apply herein because [the c]laimant
worked for [the e]mployer year[ ]round,” Prunty, 253 A.3d at 352, just as the claimant in Scotland
School argued and Claimant herein. Accordingly, since Prunty ruled on the same issue, and is a
recent en banc opinion, it is controlling herein.
6
work is not provided. Claimant maintains that it is not the intent of Section 402.1(2)
of the Law to give educational institutions more rights than other employers.
The Pennsylvania Supreme Court has instructed:
The object of all statutory interpretation is to ascertain and
effectuate the intention of the General Assembly, giving
effect, if possible, to all provisions of the statute. In
general, the best indication of legislative intent is the plain
language of a statute.
When the words of a statute are clear and free from all
ambiguity, the letter of it is not to be disregarded under
the pretext of pursuing its spirit. Words of the statute
are to be construed according to their common and
approved usage.
Sivick v. State Ethics Comm’n, 238 A.3d 1250, 1259 (Pa. 2020) (emphasis added)
(quoting Kistler v. State Ethics Comm’n, 22 A.3d 223, 227 (Pa. 2011) (cleaned up));
see generally Sections 1903 and 1921 of the Statutory Construction Act of 1972, 1
Pa.C.S. §§ 1903, 1921.
Here, Employer’s Human Resources’ witness Thomas Haupert
(Haupert) testified at the Referee hearing:
[Employer’s Representative Geoffrey Moomaw
(Moomaw)] Now, going to the prior summer, [i.e., 2019,]
was [] Claimant required to work during any of the prior
summer?
[Haupert] Bus drivers and bus aides are not required
to work. It’s a voluntary sign-up. If they’re interested,
they can sign-up for runs that take place in the summer.
[Moomaw] When you say they sign-up, is this literally
like, possibly, a sign-up sheet in the transportation office?
[Haupert] Yes, according to our CBA, on June 1[st], the
Director of Transportation must post a sheet of paper in
the transportation office for people to sign-up for summer
runs.
7
[Moomaw] Is there any punishment if [] Claimant refuses
to sign-up for summer work?
[Haupert] Not at all, no.
Reproduced Record (R.R.) at 88a (emphasis added).
Haupert expounded:
[Moomaw] You referenced [] Claimant’s [CBA], does
that [CBA] define [] Claimant’s work year?
[Haupert] It does.
[Moomaw] And, what does it state?
[Haupert] It states the third Thursday in August the
work year begins, and runs, typically, through the end
of the school year, which is, typically, the middle of
June.
[Moomaw] But, does it state the number of workdays
within the school year?
[Haupert] Drivers – yes, drivers work up to almost 189
days, depending on the driver. But, maximum 189 days
for drivers.
[Moomaw] Does the [CBA] have a separate section
referencing summer work and how it’s done via the sign-
up sheet?
[Haupert] It does, yes.
R.R. at 88a-89a (emphasis added).
The uncontested above-quoted testimony evidences that pursuant to the
CBA, which governed Employer’s and Claimant’s employment relationship,
Claimant worked from the third Thursday in August to the middle of June. The fact
that she voluntarily signed up for summer work does not change the fact that she
performed “services [] after October 31, 1983, in any other capacity [than an
instructional, research, or principal administrative capacity] for an educational
institution,” and therefore UC
8
benefits shall not be paid on the basis of such services to
any individual for any week which commences during a
period between two successive academic years or terms if
such individual performs such services in the first of
such academic years or terms and there is a reasonable
assurance that such individual will perform such
services in the second of such academic years or terms.
43 P.S. § 802.1(2) (emphasis added). The plain language of the statute mandates
that Claimant is not entitled to UC benefits.
Nevertheless, Claimant asserts that the plain language of Section
402.1(2) of the Law supports the UCBR’s conclusion. Claimant declares that
Section 402.1(2) of the Law provides UC benefits to employees for unemployment
during the weeks between “two regular terms,” as long as the weeks are not between
“two successive academic years or terms.” 43 P.S. § 802.1(1)-(2). Claimant submits
that she was unemployed during the period of Employer’s extended school year
(ESY) program when Employer’s superintendent decided to cancel the program in
the summer of 2020 due to the COVID-19 pandemic. Claimant posits that the ESY
program, while not a “regular term[],” is an extension of the academic year and not
between “two successive academic years or terms.” Id. As such, Claimant maintains
that she is entitled to UC benefits under the plain language of Section 402.1(2) of
the Law.
At the Referee hearing, Claimant’s counsel used ESY and summer
program interchangeably. See R.R. at 91a (“[T]he decision not to run [the] ESY or
summer program was a school district decision?”); see also R.R. at 92a (“[I]t’s fair
to say that [] Haupert’s correct, that you worked ESY or summer programs for
[Employer] . . . ?”). Further, Haupert testified that the work year begins the third
Thursday in August, and runs through the end of the school year, which is, typically,
the middle of June. See R.R. at 89a. The ESY/summer program, which Claimant
voluntarily signed up to work, began after the middle of June and ended before the
9
third Thursday in August. See R.R. at 87a (The student year ended June 12, 2020;
the summer program began thereafter.). Moreover, the UCBR found as a fact10 that
1. [] Claimant works as a full-time bus driver for
[Employer] where she earns $25.17 per hour; she has
worked there since December 6, 2001.
2. For the past several years, [] [C]laimant has worked
during the summer as a bus driver for [Employer], but
there was no bus driver work available during the
summer of 2020.
R.R. at 100a (emphasis added). The UCBR did not make any findings of fact
concerning ESY or mention ESY in its decision. Accordingly, because the
ESY/summer program is clearly and undisputedly “during a period between two
successive academic years[,]” 43 P.S. § 802.1(2), and Claimant received reasonable
assurance that she would return to work the following school year, Claimant is
disqualified from receiving UC benefits under Section 402.1(2) of the Law.
Conclusion
For all of the above reasons, the UCBR’s order is reversed. Claimant
is disqualified from receiving UC benefits under Section 402.1(2) of the Law, and
Claimant shall repay the non-fault overpayment in accordance with Section
804(b)(1) of the Law.11
_________________________________
ANNE E. COVEY, Judge
Judge Wallace did not participate in the decision in this case.
10
The UCBR adopted the Referee’s findings of fact and conclusions of law.
11
43 P.S. § 874(b)(1) (relating to recoupment of non-fault overpayment of benefits).
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Rose Tree Media School District, :
Petitioner :
:
v. :
:
Unemployment Compensation :
Board of Review, : No. 63 C.D. 2021
Respondent :
ORDER
AND NOW, this 8th day of August, 2022, the Unemployment
Compensation Board of Review’s December 30, 2020 order is reversed.
_________________________________
ANNE E. COVEY, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Rose Tree Media School District, :
Petitioner :
:
v. : No. 63 C.D. 2021
: Argued: June 22, 2022
Unemployment Compensation :
Board of Review, :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE LORI A. DUMAS, Judge
DISSENTING OPINION
BY JUDGE DUMAS FILED: August 8, 2022
Respectfully, I dissent. In my view, Catherine C. Hall (Claimant) is
entitled to benefits based on the substantial evidence accepted by the Unemployment
Compensation Board of Review (Board), which established that Claimant is a year-
round employee of the Rose Tree Media School District (Employer). Thus, she is
not disqualified from receiving benefits as an employee otherwise subject to Section
402.1(2) of the Unemployment Compensation Law (Law)1, but rather is entitled to
the exception recognized by this Court in Scotland School for Veterans’ Children v.
Unemployment Compensation Board of Review, 578 A.2d 78 (Pa. Cmwlth. 1990)
(Scotland School).
1
Act of Dec. 5, 1937, 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(2).
It is well-settled law that a teacher or other school employee is not
eligible for unemployment compensation benefits during term breaks, provided the
employee receives reasonable assurance that she will return to her position following
the break.2 43 P.S. § 802.1; DeLuca v. Unemployment Comp. Bd. of Rev., 459 A.2d
62 (Pa. Cmwlth. 1983). This is because such “employees are not truly unemployed
or suffering from economic insecurity during scheduled recesses.” Haynes v.
Unemployment Comp. Bd. of Rev., 442 A.2d 1232, 1233 (Pa. Cmwlth. 1982).
However, upon finding substantial evidence that an employee
otherwise subject to Section 402.1(2) is in fact employed year-round, such evidence
“obviates any further discussion on the ‘reasonable assurance’ doctrine[.]” Scotland
School, 578 A.2d at 79 (emphasis added). Notably, the Scotland School panel
affirmed an award of benefits notwithstanding the employer’s assertion that it had
given the claimant “reasonable assurance of returning to work” in the following
term. Id. An exception to the doctrine of reasonable assurance could not be more
clearly stated.
2
Reasonable assurance is a term of art that has not been defined by the Law, but Section
65.161 of the regulations defines reasonable assurance:
(a) For purposes of section 402.1 of the law (43 P.S. § 802.1), a contract or
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 or educational service agency 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).
LAD - 2
As the majority observes, for at least five years preceding the summer
of 2020, Claimant worked for Employer through the summer months. This is far
longer than the two academic years and one intervening summer considered
sufficient evidence of year-round employment in Scotland School. See id. at 81.
Further, while Employer had given Claimant reasonable assurance that she would
return to her position in the fall, the Board’s finding of year-round employment
rendered the assurance irrelevant to whether Claimant was entitled to benefits. Id.
at 79.3
The majority also suggests that applying Scotland School would
undermine other precedent of this Court. See Rose Tree Media Sch. Dist. v.
Unemployment Comp. Bd. of Rev., ___ A.3d ___, ___ (Pa. Cmwlth., No. 63 C.D.
2021, filed August 8, 2022), slip op. at 5. Respectfully, I disagree. It is unclear to
me why Scotland School is worthy of less precedential deference than other
published decisions of this Court. Further, the singular case cited in support of the
majority’s assertion is readily distinguishable legally and factually. In Prunty v.
Unemployment Compensation Board of Review, 253 A.3d 349 (Pa. Cmwlth. 2021),
the issue before the en banc panel was whether the collegiate employer’s summer
term constituted a “regular term” based on the plain language of Section 402.1(1).4
3
The majority places great importance on certain testimony from Employer describing
Claimant’s year-round employment as “voluntary.” See Rose Tree Media Sch. Dist. v.
Unemployment Comp. Bd. of Rev., ___ A.3d ___, ___ (Pa. Cmwlth., No. 63 C.D. 2021, filed
August 8, 2022), slip op. at 7-9. In my view, Employer’s description of Claimant’s employment
is rather facile and self-serving. Claimant did not volunteer her time but worked for wages. Thus,
I reject Employer’s description and note that the Board, whose role as the fact-finder is entitled to
our deference, did not credit it. See Board’s Decision & Order, 12/30/20 at 1-2 (unpaginated); see
also Halloran v. Unemployment Comp. Bd. of Rev., 188 A.3d 592, 597 (Pa. Cmwlth. 2018) (“The
Board’s findings of fact are conclusive on appeal if the record, taken as a whole, contains
substantial evidence to support them.”).
4
Although similar, Section 402.1(1) applies to individuals employed “in an instructional,
research, or principal administrative capacity for an educational institution[.]” 43 P.S. § 802.1(1).
LAD - 3
The en banc panel concluded that the summer term was sufficiently distinguishable
from the spring and fall academic terms, and, therefore, the claimant’s prior part-
time summer work was insufficient to establish year-round employment. Prunty,
253 A.3d at 357. Thus, the exception to the reasonable assurance doctrine
recognized in Scotland School was not considered. Additionally, the Prunty
claimant was a part-time, adjunct faculty member who argued that depriving part-
time instructors of unemployment compensation benefits was unfair. Id. at 359.
Here, of course, there is no question that Claimant was a full-time employee. Thus,
in my view, the majority’s reliance on Prunty is misplaced.5
In conclusion, Claimant established that she was a year-round
employee with substantial evidence far stronger than that deemed sufficient by the
Scotland School panel. Further, our decision therein remains precedential, and in
the decades since, our General Assembly has offered neither an express repudiation
nor more subtle criticism indicating that the exception to the reasonable assurance
doctrine was ill conceived. For these reasons, I respectfully dissent.
LORI A. DUMAS, Judge
President Judge Cohn Jubelirer joins in this dissent.
5
The majority maintains that Prunty is applicable because this Court rejected the Prunty
claimant’s assertion that she was a year-round employee. In my view, that is a mischaracterization
of the analysis. In Prunty, this Court determined, as a matter of law, the collegiate employer’s
summer term did not constitute a “regular term” and, therefore, the claimant’s prior, part-time
work during the summer term did not establish year-round employment. See Prunty, 253 A.3d at
357. That is far different from the circumstances herein, where substantial evidence has
established that Claimant was, in fact, a year-round employee. Thus, if it is the decision of this
Court to overrule Scotland School, it should do so directly and not in reliance on this Court’s
decision in Prunty.
LAD - 4