Opinion
No. 1897 C.D. 2012
05-13-2013
James G. Carpino, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
James G. Carpino (Claimant) petitions for review of the September 7, 2012, order of the Unemployment Compensation Board of Review (UCBR) affirming the referee's decision to deny Claimant unemployment compensation (UC) benefits. The UCBR determined that Claimant received benefits to which he was not entitled under section 402.1(3) of the Unemployment Compensation Law (Law) because he had a reasonable assurance of continued employment. We affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, added by the Act of July 6, 1977, P.L. 41, as amended, 43 P.S. §802.1(3).
Claimant began working for Community College of Philadelphia (Employer) as a part-time, adjunct instructor in 2002. Claimant's last day of work was December 22, 2011. Employer's winter break ran from December 23, 2011, to January 17, 2012. (UCBR's Findings of Fact, Nos. 1, 2, and 5.)
Before winter break, Claimant submitted a survey indicating his availability for the spring semester. Claimant has returned to work in a similar capacity after each winter break since 2002. Employer usually notifies Claimant verbally one week prior to the start of the semester that he can return. (UCBR's Findings of Fact, Nos. 3, 4.)
We note that Claimant filed for and received UC benefits during summer sessions in 2010 and 2011. (See Referee's Decision, 9/21/10; Referee's Decision, 7/25/11.) In both instances, the referee found that Claimant did not have a reasonable assurance of continued employment.
The Claimant filed for and received $1,909 in UC benefits for compensable weeks ending December 31, 2011, through January 21, 2012. (UCBR's Findings of Fact, No. 7.) On May 25, 2012, the local service center determined that Claimant was ineligible to receive UC benefits under section 402.1(3) of the Law because he had a reasonable assurance, based on his employment history, of continued work after winter break. The local service center issued a notice of determination that Claimant had a non-fault overpayment under section 804(b) of the Law, 43 P.S. §874(b). Claimant appealed the determination to a referee.
On June 13, 2012, the referee held a hearing that Claimant and Employer attended. The referee found that Claimant had a reasonable assurance of returning to work in the same capacity when school resumed after winter break and affirmed the notice of determination. (UCBR's Findings of Fact, No. 6.) Claimant appealed to the UCBR. On September 7, 2012, the UCBR affirmed, adopting and incorporating the referee's findings and conclusions.
On appeal to this court, Claimant argues that he did not have a reasonable assurance of continued employment. We disagree.
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. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704. --------
Section 402.1(3) of the Law denies payment of benefits for:
any week which commences during an established and customary vacation period or holiday recess if such individual performed such services in the period immediately before such vacation period or holiday recess, and there is a reasonable assurance that such individual will perform such services in the period immediately following such vacation period or holiday recess.43 P.S. §802.1(3). "The term 'reasonable assurance,' while not defined by the Law, has been defined by regulation." Glassmire v. Unemployment Compensation Board of Review, 856 A.2d 269, 273 (Pa. Cmwlth. 2004).
The applicable UCBR regulation defines the term "reasonable assurance" as:
(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:34 Pa. Code §65.161(a); see also Glassmire, 856 A.2d at 273. The Law "does not require a guarantee of future employment, only a reasonable assurance[,] and what constitutes 'assurance' is a matter to be determined by the [UCBR] based upon relevant facts." Bornstein v. Unemployment Compensation Board of Review, 451 A.2d 1053, 1055 (Pa. Cmwlth. 1982). Employment history is among the relevant factors to consider. Id; see also Armstrong School District v. Unemployment Compensation Board of Review, 596 A.2d 1250, 1252-53 (Pa. Cmwlth. 1991) (holding that substitute teachers were not entitled to UC benefits for holiday recesses).
(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.
The UCBR specifically found that Claimant had a reasonable assurance of returning to work. (UCBR's Findings of Fact, No. 6.) Claimant had customarily returned after each winter break since 2002. Because employment history is a factor to be considered in determining whether a bona fide offer of continued employment exists, Employer presented sufficient evidence to establish that Claimant had a reasonable assurance of continued work.
Although Employer's witness did not know if Claimant had been contacted in early January, Claimant still had a reasonable assurance that he would return because he had returned to teach in the ten previous spring semesters. Claimant did not receive a phone call or e-mail informing him that he would not be returning. Moreover, Claimant must have been contacted before January 17, 2012, because he returned to teach on this date. (N.T. at 7, 10.) By itself, the fact that this correspondence happened several days later than in years prior does not vitiate the Claimant's reasonable assurance of continued employment.
Accordingly, we affirm.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 13th day of May, 2013, we hereby affirm the September 7, 2012, order of the Unemployment Compensation Board of Review.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge