B. Prunty v. UCBR ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Beverly Prunty, :
Petitioner :
:
v. :
:
Unemployment Compensation :
Board of Review, : No. 1761 C.D. 2019
Respondent : Argued: February 10, 2021
BEFORE: HONORABLE P. KEVIN BROBSON, President Judge
HONORABLE MARY HANNAH LEAVITT, 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
OPINION BY
JUDGE COVEY FILED: May 4, 2021
Beverly Prunty (Claimant) petitions this Court for review of the
Unemployment Compensation (UC) Board of Review’s (UCBR) November 26, 2019
order affirming the Referee’s decision finding Claimant ineligible for UC benefits
under Section 402.1 of the Unemployment Compensation Law (Law).1 The issue
before the Court is whether the Community College of Philadelphia’s (Employer)
summer term constitutes a “regular term” based on the plain language of Section
402.1(1) of the Law.2
Employer employed Claimant as a part-time adjunct faculty member in its
English Department (Department) beginning in 1991. Employer begins academic
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
Claimant includes a second issue of whether precedent supports the UCBR’s decision, which
is encompassed in the discussion of the first issue. See Claimant Br. at 3.
years with a fall semester, after which is a spring semester, followed by two summer
sessions. Enrollment in Employer’s courses during the summer sessions is much lower
than during the fall and spring semesters and, as a result, Employer offers fewer courses
during the summer term. Claimant is a member of a union that has a collective
bargaining agreement with Employer providing, among other things, that adjunct, part-
time professors or instructors range in seniority from level 1 to level 14, with the
highest number having first preference in their departments to bid on work during the
summer sessions. Claimant has the highest seniority level in her Department. Further,
Employer gives full-time faculty members priority over part-time faculty members, if
both are available, to teach summer courses offered in their departments.
Claimant taught courses during Employer’s spring 2019 semester, which
ended on May 2, 2019. Claimant had a history of returning to her same teaching
position each new academic year. On April 24, 2019, Employer issued Claimant a
letter stating: “[T]he purpose of this letter is to acknowledge your services during the
[s]pring 2019 academic semester . . . . There is a reasonable assurance that you will
have the opportunity to perform a similar service during the [f]all 2019 academic
semester, dependent upon enrollment, budgetary considerations and performance.”
Certified Record (C.R.) Item 9, Notes of Testimony, August 15, 2019 (N.T.) at Ex. E-
1.
Employer requires part-time adjunct professors and instructors to submit
availability forms. Claimant gave Employer 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, Employer had
sufficient student enrollment, and few available full-time faculty to teach, thereby
giving Claimant the ability to bid on and receive more than one course to teach.
However, there was a year, 2012, where Claimant did not teach during either summer
session.
2
For the summer 2019 term, either due to lack of student enrollment or full-
time faculty available to teach in the summer term, there were an insufficient number
of courses within Claimant’s Department to enable her to teach during both summer
sessions. Employer offered and Claimant accepted a course in the first summer session,
from May 11 through June 21, 2019, at a pay rate of $3,522.75 for said period. In
addition to teaching one summer course, Claimant performed non-teaching work for
Employer from June 6 through June 20, 2019, at an hourly rate of pay. Claimant
applied for UC benefits.
Claimant received $1,016.00 in UC benefits from May 11, 2019, through
June 8, 2019. On June 13, 2019, the Indiana UC Service Center issued a Notice of
Determination (Determination) finding Claimant ineligible for UC benefits under
Section 402.1(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.3 The UC Service Center
also mailed Claimant a Notice of Non-Fault Overpayment (Notice), stating therein that
Claimant was overpaid for five weeks because she was ineligible to receive UC benefits
for the 2019 summer break due to Employer’s reasonable assurance of work in the fall.
On June 20, 2019, Claimant appealed from the Determination and the
Notice, stating that she works for Employer year-round, including the summer term,
and that her work hours were decreased in 2019 based on the lone class she taught in
the first summer session. A Referee hearing was held on August 15, 2019. On August
19, 2019, the Referee affirmed the UC Service Center’s Determination and Notice.4
3
The Determination stated that Claimant was ineligible for UC benefits “beginning waiting
week ending 5/4/2019.” C.R. Item 5, Determination at 1. However, because the waiting week ending
May 4, 2019, was during the spring semester and not the summer term, Section 402.1(1) of the Law
does not apply thereto.
4
The Referee reversed the portion of the Determination finding Claimant ineligible for UC
benefits for waiting week ending May 4, 2019.
3
Claimant appealed to the UCBR. The UCBR affirmed the Referee’s decision.
Thereafter, Claimant appealed to this Court.5,6
Claimant argues that the reasonable assurance doctrine does not apply
herein because Claimant worked for Employer year-round. Specifically, Claimant
declares that Section 402.1(1) of the Law only disqualifies her for the weeks at issue if
they fall in one of two periods: (1) a break or period between academic years; or (2) a
similar period between regular terms. See 43 P.S. § 802.1(1). Claimant contends her
unemployment did not occur during a period between academic years, as the summer
term is clearly included within Employer’s academic year. Further, Claimant maintains
that, in order to determine whether Employer’s summer term constitutes a regular term
or a period between regular terms, this Court must examine, as an issue of first
impression, the meaning of the word “regular” as it is used in Section 402.1(1) of the
Law. Claimant asserts that the plain meaning of “regular” in the context of the statute
suggests that “regular terms” are conducted under consistent standards and offer the
institution’s normal educational instruction to the general student population. Thus,
Claimant argues that whether a school term is considered “regular” must be evaluated
individually for each institution of higher learning.
Moreover, Claimant proclaims that the plain meaning of Section 402.1(1)
of the Law aligns with the remedial nature of the Law as well as the intent behind the
Section 402.1 disqualification. Claimant maintains that the General Assembly’s intent
in passing Section 402.1 of the Law was “to eliminate the payment of benefits to school
employees during summer months and other regularly scheduled vacations, on the
5
“‘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).
6
United Academics of Philadelphia filed an amicus curiae brief.
4
rationale that such employees are able to anticipate and prepare for these nonworking
periods.” Haynes v. Unemployment Comp. Bd. of Rev., 442 A.2d 1232, 1233 (Pa.
Cmwlth. 1982). Claimant declares that she had no reason to anticipate that she would
not be working during Employer’s 2019 summer term because it was not a vacation
period or period in which the normal curriculum is not offered; instead, her
employment history reflects the opposite - that she had a reasonable and realistic
expectation of working throughout both of the summer sessions.
United Academics of Philadelphia (Amicus) argues that because the
landscape of higher education has changed since the enactment of Section 402.1(1) of
the Law, and prevailing norms in higher education today demonstrate that contingent
faculty teach summer term classes as regularly as fall or winter term classes, contingent
faculty should, under the plain text of the Law, qualify for UC benefits when they lose
summer term assignments, just as when they lose fall and winter term assignments.7
Specifically, Amicus contends that, at the time Section 402.1(1) of the Law was
enacted, smaller and more homogenous higher education institutions scheduled the vast
majority of classes during formal fall and winter semesters and staffed those classes
largely with tenured or tenure-track faculty; whereas, since 1979, new and different
models of higher education have proliferated which include new types of providers
which rely on and employ primarily contingent faculty.
Further, Amicus asserts that contingent faculty earn a fraction of what full-
time faculty earn, and largely do not receive benefits like health insurance or retirement
contributions, even while working more than forty hours per week. Crucially for this
analysis, Amicus declares that contingent faculty enjoy no job stability, often learning
mere weeks before summer, fall, and winter academic terms whether they will teach
their scheduled classes. Tenured faculty who enjoy fair, stable pay, good benefits, and
7
As Employer does not have a winter semester or term, it appears that Amicus treats winter
as synonymous with spring when describing the class terms.
5
reliable assignments have been increasingly replaced by contingent faculty who enjoy
none of those things.
Finally, Amicus maintains that COVID-19 has only exacerbated the
existing trends in ways that highlight why contingent faculty should qualify for UC
benefits for lost summer term classes, and why these benefits are crucial. It asserts that
the burdens COVID-19 has imposed on colleges, universities, and other higher
education institutions have fallen heavily on the shoulders of contingent faculty.
The UCBR rejoins that this Court has previously determined what
constitutes a “regular term” as used in Section 402.1 of the Law in Community College
of Allegheny County v. Unemployment Compensation Board of Review, 634 A.2d 845(Pa. Cmwlth. 1993) (CCAC). The UCBR argues that the CCAC Court established
factors to be considered in determining whether a summer term is a regular term. The
factors are: (1) size of enrollment; (2) number of weeks the courses run; (3) availability
of course subjects; (4) length of the summer session(s); and (5) whether the classes are
contingent on enrollment.
Here, the UCBR contends that concerning the first factor, size of
enrollment, fewer students were enrolled during Employer’s 2019 summer term than
its fall and spring semesters, which affected the number of summer classes Employer
offered. The UCBR argues that this factor weighs against a conclusion that the summer
term was a regular academic term. Regarding the second factor, number of weeks, the
UCBR claims that because the summer term course offerings differed in length, being
shorter than the fall and spring semesters, this factor weighs against a conclusion that
the summer term was a regular academic term. With respect to the third factor,
availability of course subjects, the UCBR asserts that fewer courses were offered in the
summer term than the fall and spring semesters and there was also less availability of
course subjects in the summer sessions. Therefore, the UCBR proclaims that this factor
weighs against a conclusion that the summer term was a regular academic term. The
6
UCBR declares that because enrollment for the summer term was lower, the number
of weeks shorter, and the availability of course subjects fewer, Employer’s 2019
summer term at issue here was not a regular term.8
The UCBR maintains that Claimant worked in the spring semester and
was given reasonable assurance of continued employment for the fall semester. The
UCBR further declares that Employer’s summer sessions were not a regular term as
they failed to meet the applicable precedential factors. Thus, the UCBR asserts that
Claimant is ineligible for UC benefits under Section 402.1(1) of the Law.
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:
(1) With respect to service performed after December 31,
1977, in an instructional, research, or principal
administrative capacity for an educational institution,
benefits shall not be paid based on such services for any
week of unemployment commencing during the period
between two successive academic years, or during a similar
period between two regular terms whether or not
successive . . . , to any individual 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.
43 P.S. § 802.1 (emphasis added).9 Claimant does not dispute that she received a
reasonable assurance that she would be working in Employer’s 2019 fall semester.
Rather, she argues that Employer’s 2019 summer sessions were not “during the period
8
Although the UCBR cites to CCAC’s five factors, it only discusses three of the five factors
in analyzing whether Employer’s 2019 summer term was a regular term.
9
Because Section 402.1(1) of the Law is a disqualifying provision, Employer has the burden
of proving that the unemployment period began “during the period between two successive academic
years, or during a similar period between two regular terms whether or not successive[,]” and that
Claimant received “a reasonable assurance that [she would] perform services . . . in the second of
such academic years or terms.” Id.
7
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.” Id.
In CCAC, the claimant applied for UC benefits when he was unable to
teach a summer course for Community College of Allegheny County (CCAC). The
UC Service Center determined that he was eligible for UC benefits. The employer
appealed, and a Referee affirmed the UC Service Center’s determination. The
employer appealed to the UCBR, which affirmed the Referee’s decision. The employer
appealed to this Court, which reversed the UCBR’s order. The CCAC Court held:
“[B]ecause the claimant was unemployed during a summer break, and had assurance
of returning to work in the fall semester, he is not entitled to benefits.” Id. at 848. The
CCAC Court explained:
In contrast to the fall and spring terms which each last fifteen
weeks, courses offered in the summer may last 4, 6, 8 or 10
weeks. Although two sessions are offered in the summer,
not all of the campuses offer classes during both sessions.
Three of the six campuses only offer courses during
Summer Session I.
Courses offered in the summer require the same number of
classroom hours and are given the same credits as those in
other terms. However, CCAC offers fewer classes in the
summer. In the spring of 1991, CCAC offered 13 oral
communication classes at the Allegheny Campus, where
the claimant worked, while during the summer[,] 6
classes were offered.
Additionally, the 1991 spring and summer class schedules,
which are a part of the record, indicate that the summer term
is not the same as the other two. Students attending CCAC
during the spring who take at least [12] credits are
considered full-time students, and pay a flat tuition rate.
In the summer term, there is no distinction between full
and part-time students; all of the students pay on a per
credit basis.
8
Although CCAC regularly offers classes during the
summer, that fact does not mean that the summer period
is a regular academic term. In view of the significant
decrease in enrollment during the summer, the definition of
the academic calendar as consisting of a fall and spring term,
and the varying lengths of course instruction in the summer,
we conclude that the period in question - May 25, 1991 to
June 22, 1991 - is not a regular term, nor is it part of a
regular term.
Id. (emphasis added); see also Glassmire v. Unemployment Comp. Bd. of Rev., 856
A.2d 269 (Pa. Cmwlth. 2004) (wherein this Court found the summer term was not a
regular term because the employer’s academic calendar consisted of two semesters -
spring and fall, the employer had abbreviated summer sessions that were not part of the
academic year, and while the claimant’s classes may not have conformed to the
traditional academic schedule, the claimant’s employment was contingent on student
enrollment which significantly decreased during the summer months).
More recently, in Boyd v. Unemployment Compensation Board of Review
(Pa. Cmwlth. No. 205 C.D. 2018, filed November 20, 2018),10 this Court addressed the
same argument Claimant proffers herein. Relying on CCAC, this Court affirmed the
UCBR’s order denying UC benefits under Section 402.1(1) of the Law. Specifically,
the Boyd Court expounded:
First, [the c]laimant asserts that the [UCBR] erred by
concluding that the summer term is not a regular term within
the meaning of the Law. We disagree. The factual scenario
at hand is similar to the one in [CCAC], wherein this Court
found that a part-time professor was not eligible for benefits
during the summer term because the school’s summer term
was not a regular term. [CCAC], 6[34] A.2d at 847. The
Court did not deem [the] summer term to be a regular term
because the courses offered in the summer had lower
10
Pursuant to Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code §
69.414(a), an unreported panel decision of this Court issued after January 15, 2008, may be cited for
its persuasive value, but not as binding precedent.
9
enrollment, were shorter in duration, and were limited in
number. Here, the [UCBR] found that the summer courses
offered at the [e]mployer’s campus were shorter in duration.
The [UCBR] also found that the spring and fall terms are
different from the summer [term]. Further, it found that the
summer program course [the c]laimant was selected to teach
was cancelled due to low enrollment. Here, just as in
[CCAC], the [UCBR] found that: (1) the offered summer
courses are shorter in duration; (2) there is some evidence
that at least one class ha[d] been cancelled due to low
enrollment; and (3) at least one class was unavailable over
the summer term. It follows, then, that the summer term
is sufficiently distinguishable from the spring or fall
academic terms and does not constitute a regular term
within the meaning of Section 402.1 of the Law.
Boyd, slip op. at 11 (citations omitted; emphasis added).
In the instant matter, the UCBR opined:
In her appeal, [] [C]laimant argues not all factors were met
to conclude that [the] summer term[] [was] not [a] regular
term[]. The Commonwealth Court has taken a narrow view
as to what constitutes a summer term, holding that because a
school’s summer offerings differed from the spring and fall
terms as to size of enrollment (lower), number of weeks
(shorter), availability of course subjects (fewer), and was not
listed in the catalog as a ‘term,’ the summer period was not a
regular academic term. Here, [] [E]mployer credibly testified
that ‘there are significantly less courses offered in the
summer session[s].’ The school also operates on a 4-day
work week schedule during the summer and ‘resume[s]
the regular 5-day work week schedule’ in the fall. It is
clear that the summer is unlike the rest of the year at []
[E]mployer. [] [E]mployer resumes something that is
regular after the summer period, demonstrating the summer
period is indeed different.
UCBR Dec. at 1 (bold emphasis added). Further, the Referee concluded, and the
UCBR adopted the conclusion: “Because of the holding in [CCAC], therefore, the
[s]ummer term[] cannot be considered ‘regular’[.]” Referee Dec. at 4.
10
Employer’s witness testified before the Referee that there is a “drastic
difference” in student enrollment in the fall and spring semesters compared to the
summer sessions. C.R. Item 9, N.T. at 10. Employer’s witness explained that although
the college offers courses in the summer, the summer “is a break” for academic faculty
and “[t]he college has less courses offered, and less students that enroll.” C.R. Item 9,
N.T. at 9. Further, Employer’s College Catalog (Catalog) expressly referred to the fall
and spring semesters as “[t]he major semesters.” C.R. Item 9, N.T. Ex. C-3. The
Catalog specifies that fall and spring semester classes run for 15 weeks, 10 weeks and
7 weeks, and the summer term classes run for 14 weeks and 7 weeks.11 See id. The
15-week and 10-week courses offered during the fall and spring semesters are offered
at the main and regional campuses and online, whereas only the 7-week courses offered
in the summer are available at the main and regional campuses and online. See C.R.
Item 2, Claimant Questionnaire, Employer’s 2019 Term Start and End Dates at 3.
Moreover, Claimant acknowledged during her testimony that summer class availability
was dependent upon enrollment. See C.R. Item 9, N.T. at 14. Consequently, “because
enrollment was down,” not all faculty would teach during Employer’s 2019 summer
term. Id.While some of the CCAC factors appear to overlap, the determinative
issue is whether “the summer term is sufficiently distinguishable from the spring or
fall academic terms and[, thus,] does not constitute a regular term within the meaning
of Section 402.1 of the Law.” Boyd, slip op. at 11 (emphasis added). Here, substantial
evidence supports the UCBR’s conclusion that, during the summer sessions, student
enrollment was lower, fewer courses were offered at both the main and regional
campuses, the course subject availability was less, the classes were contingent upon
enrollment, and the Catalog defined the fall and spring semesters as major semesters.
11
The seven-week classes offered in the fall and spring semesters are listed as “accelerated”
while the seven-week classes offered in the summer are not. Id.11
Accordingly, this Court concludes, after weighing the CCAC factors, that Employer’s
summer term is not a regular term under Section 402.1(1) of the Law.12
“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.” Dep’t of Educ., Scotland Sch. for Veterans’
Children v. Unemployment Comp. Bd. of Rev., 578 A.2d 78 (Pa. Cmwlth. 1990)
(citation omitted).
The Pennsylvania Supreme Court has explained:
The intent of the legislature in passing Section 402.1 [of the
Law] was to eliminate the payment of [UC] benefits to school
employees during summer months and other regularly
scheduled vacations, on the rationale that such employees
are able to anticipate and prepare for these non[-
]working periods. The [L]aw thus recognizes that these
employees are not truly unemployed or suffering from
economic insecurity during scheduled recesses.
Slippery Rock Area Sch. Dist. v. Unemployment Comp. Bd. of Rev., 983 A.2d 1231,
1244 (Pa. 2009) (emphasis added) (quoting Haynes, 442 A.2d at 1233).
While this Court agrees that the UCBR properly relied on CCAC in
determining that Claimant was ineligible for UC benefits under Section 402.1 of the
Law, this Court also believes there should be some room for consideration of a
claimant’s “reasonable” expectation of employment during an institution’s summer
term based on an employer’s treatment of its summer term, not on a claimant’s
personal history. This Court emphasizes that, here, Claimant is essentially arguing
that she is entitled to UC benefits because she has worked every summer term, with the
12
“The Court envisions that there could be a factual scenario where a summer term could be
considered a regular term, but Claimant did not establish those circumstances in this case.” Boyd,
slip op. at 11 n.8.
12
exception of one, since 1991. However, Claimant has a level 14 seniority, i.e., the
highest seniority in her Department, giving her priority over all other part-time
instructors in her Department. Thus, she was more likely to work both summer sessions
in 2019 than all other part-time faculty in her Department, yet she was only offered to
teach one course. This fact belies Claimant’s argument that Employer’s summer term
is a regular term based on her having worked virtually every summer since 1991,
because part-time teaching faculty from level 1 through 13 have less of a probability,
thus, less expectation, that they would teach during the summer term than Claimant.
The issue herein is not whether Claimant reasonably expected to teach during the
summer term, but whether Employer’s summer term was a “regular” term for purposes
of Section 402.1(1) of the Law.
Employer’s witness testified that part-time adjunct (teaching) faculty
members are considered 9-month employees, as opposed to counselors, librarians and
advisors, who are considered 12-month (non-teaching) faculty members, due to the fact
that they do not take breaks throughout the year. See C.R. Item 9, N.T. at 4-5. Further,
Employer’s witness explained: “[I]n the fall and the spring semester, we have about
22[,00013] students enrolled. In the summer [term], we’re talking all sessions not
semesters, about 2,000 students enroll. That’s [a] drastic difference. Of course, the
course offerings are significantly less.” C.R. Item 9, N.T. at 10.
Importantly, Claimant confirmed that, in the almost 30 years that
Employer has employed her, she has received “reasonable assurance of employment
during the academic year for a nine-month period” from Employer, every year after
the spring semester ended assuring her of work in the upcoming fall semester. C.R.
Item 9, N.T. at 16 (emphasis added). Conversely, Claimant confirmed that she has
13
Read in context, the “22” was clearly a typographical error in the transcript and 22,000 is
the most logical number based on the testimony.
13
never received “written notice that [she] had reasonable assurance that [she would]
work every summer[.]” C.R. Item 9, N.T. at 17.
Moreover, the preface to the Catalog expressly states:
The academic year begins in September and ends in August
of the following year. The major semesters, fall and
spring, are 15 weeks in length. The fall semester begins in
September, and the spring semester begins in January.
Summer terms are held between May and August.
This calendar reflects major term dates and activities
scheduled primarily at the Main Campus and the
Regional Centers. Term start and end dates, refund periods,
the final day to drop course(s) without penalty of ‘F’
grade(s), and deadlines to change ‘I’ grades vary for all
terms. For complete information, click here. The College is
closed on Sunday. In addition, the College is closed Friday
and Saturday during the summer.
C.R. Item 9, N.T. Ex. C-3 (bold and italic emphasis added).
The CCAC factors, in combination with the above testimony and
Claimant’s exhibit, establish that Claimant was aware Employer did not treat its
summer term as a “regular” term. Thus, notwithstanding that Claimant has worked all
but one summer term before 2019, she knew there was a possibility that she would not
have employment during Employer’s summer term. Indeed, Claimant testified:
C[laimant’s] L[awyer] [I]n the past, when are you usually
alerted that whether or not you’re going to be teaching a
class? How far in advance?
C[laimant] Well, that really depends. It varies, depending
upon the enrollment of the summer, depending upon the
number of full[-]time faculty members who have requested
the class. I can be notified as early as April or as late as June.
C.R. Item 9, N.T. at 13 (emphasis added).
Section 402.1(1) of the Law expressly applies to “service . . . in an
instructional, research, or principal administrative capacity for an educational
14
institution[.]” 43 P.S. § 802.1(1) (emphasis added). Section 402.1(1) of the Law makes
no differentiation between full-time and part-time instructional employees nor does it
distinguish among the types of educational institutions. Claimant is asking this Court
to carve out an exception to Section 402.1(1) of the Law for part-time instructors at a
postsecondary institution.
However, we have no authority to add or insert language into
a statute, Burke ex rel. Burke v. Indep[.] Blue Cross, . . . 103
A.3d 1267, 1273-74 ([Pa.] 2014), and ‘it is not for the courts
to add, by interpretation, to a statute, a requirement which the
legislature did not see fit to include,’ Shafer Elec[.] &
Constr[.] v. Mantia, . . . 96 A.3d 989, 994 ([Pa.] 2014)
(quoting Commonwealth v. Rieck Inv[.] Corp[.], . . . 213 A.2d
277, 282 ([Pa.] 1965)).
Summit Sch., Inc. v. Dep’t of Educ., 108 A.3d 192, 199 (Pa. Cmwlth. 2015). “Although
Claimant argues against the fairness of depriving part-time instructors [UC] benefits
where they do not have the security of annual contracts, this is an argument better made
to the General Assembly than to the courts.” Glassmire, 856 A.2d at 276 n.5.
Accordingly, this Court concludes that Claimant is ineligible for UC benefits under
Section 402.1 of the Law.
For all of the above reasons, the UCBR’s order is affirmed.
_________________________________
ANNE E. COVEY, Judge
15
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Beverly Prunty, :
Petitioner :
:
v. :
:
Unemployment Compensation :
Board of Review, : No. 1761 C.D. 2019
Respondent :
ORDER
AND NOW, this 4th day of May, 2021, the Unemployment Compensation
Board of Review’s November 26, 2019 order is affirmed.
_________________________________
ANNE E. COVEY, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Beverly Prunty, :
Petitioner :
:
v. : No. 1761 C.D. 2019
: Argued: February 10, 2021
Unemployment Compensation :
Board of Review, :
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, President Judge
HONORABLE MARY HANNAH LEAVITT, 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
CONCURRING OPINION
BY JUDGE LEAVITT FILED: May 4, 2021
The majority concludes that a summer academic term is not a “regular”
term and, thus, Beverly Prunty (Claimant) is ineligible for unemployment
compensation benefits under Section 402.1(1) of the Unemployment Compensation
Law (Law).1 I agree with the outcome, given our longstanding precedent.
Nevertheless, the “reasonable assurance” paradigm developed to determine the
eligibility of full-time teachers for unemployment compensation makes little sense
when applied to part-time teachers who become “unemployed through no fault of
their own” for an academic term that takes place in the summer. Section 3 of the
Law, 43 P.S. §752.
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.
Claimant has worked as a part-time adjunct faculty member in the
English Department at the Community College of Philadelphia (College) since 1991.
Throughout her employment, she has consistently taught classes in each of the
College’s three academic terms, i.e., the Fall, Spring and Summer terms. The
College’s website states that “[t]he academic year begins in September and ends in
August of the following year.” Certified Record (C.R.), Item No. 9, C-3. Classes
in the Fall and Spring terms may be 15, 10 or 7 weeks long; classes in the Summer
term run for 14 or 7 weeks. However, all classes earn three academic credits and
require the same number of hours in the classroom, regardless of the term in which
they are offered. The College offers the same type of curriculum in all three terms.
Claimant is paid the same amount for each class taught, regardless of whether it is a
14-week class in the Summer term or a 7-week class in the Spring term. Stated
otherwise, all three terms are “regular” with regard to the type of course offerings
and credit hours.
The College’s part-time adjunct faculty members are not appointed for
an academic year. Their hiring follows the same procedure for each of the three
terms. The adjunct faculty member must submit a form prior to the onset of each
term, in which she commits to be available to teach during the upcoming term. After
the full-time faculty have selected their classes, adjunct faculty members are
assigned the remaining classes in order of seniority within their particular
department. Compensation is tied to the number of classes taught; part-time faculty
are not paid an annual salary.
Since 2007, Claimant has customarily taught three or four classes in
each of the three terms of the College. Specifically, she taught a total of 44 classes
in the Fall term, 40 classes in the Spring term and 33 classes in the Summer term.
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Because of variables related to student enrollment and the preferences of full-time
faculty, Claimant often does not learn how many courses she will be teaching until
days before the term’s inception.
In advance of the 2019 Summer term, Claimant submitted her
availability form to the College. In April of 2019, the College sent a letter to
Claimant acknowledging the services she performed in the 2019 Spring term and
providing her a reasonable assurance that she “will have the opportunity to perform
a similar service during the Fall 2019 academic semester, dependent upon
enrollment, budgetary considerations and performance.” C.R., Item No. 9, C-1.
Claimant was assigned a single class during the 2019 Summer term,
from May 11 through June 21, instead of the usual assignment of three or four
classes. She filed an application for unemployment compensation based on her
substantially reduced hours. On June 13, 2019, the Indiana Unemployment
Compensation Service Center (Service Center) issued a Notice of Determination
finding Claimant ineligible under Section 402.1(1) of the Law. The Notice
explained that she was ineligible because her unemployment began between
academic years, and the College provided her an offer of work in the next academic
year. A second Notice stated that Claimant was liable for a non-fault overpayment
of benefits because she was “INELIGIBLE TO COLLECT FOR SUMMER BREAK
2019 DUE TO INELIGIBLE REASONABLE ASSURANCE FROM
COMMUNITY COLLEGE OF PHILADELPHIA.” C.R., Item No. 5.
Section 402.1(1) of the Law states that unemployment benefits “based
on service for educational institutions” are payable on the same terms as for other
employees under the Law, except that:
With respect to service performed … in an instructional,
research, or principal administrative capacity for an educational
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institution, benefits shall not be paid based on such services for
any week of unemployment commencing during the period
between two successive academic years, or during a similar
period between two regular terms whether or not successive or
during a period of paid sabbatical leave provided for in the
individual’s contract, to any individual 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.
43 P.S. §802.1(1) (emphasis added). Based upon Section 402.1(1), the
Unemployment Compensation Board of Review found that Claimant was not
“unemployed” during the Summer term of 2019. Employer’s “reasonable
assurance” that she “will have the opportunity to perform a similar service during
the Fall 2019 academic semester” rendered her ineligible. C.R., Item No. 9, C-1.
Our Supreme Court has explained Section 402.1 of the Law as follows:
The intent of the legislature in passing Section 402.1 was to
eliminate the payment of benefits to school employees during
summer months and other regularly scheduled vacations, on the
rationale that such employees are able to anticipate and prepare
for these non-working periods. The law thus recognizes that
these employees are not truly unemployed or suffering from
economic insecurity during scheduled recesses.
Slippery Rock Area School District v. Unemployment Compensation Board of
Review, 983 A.2d 1231, 1244 (Pa. 2009) (emphasis added) (quoting Haynes v.
Unemployment Compensation Board of Review, 442 A.2d 1232, 1233 (Pa. Cmwlth.
1982)). Claimant argues that this rationale makes no sense when applied to part-
time faculty whose wages are based on the number of classes taught, not an annual
salary. Far from anticipating a “non-working” period for the 2019 Summer term,
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Slippery Rock, 983 A.2d at 1244, Claimant anticipated that she would be working
during this term as she had for many years.
Claimant further argues that the College’s Summer term is part of its
academic year, which runs from September to August; it is not a “break” between
academic years. All three terms are “regular,” at least with respect to the type of
curriculum and credit hours offered, and Claimant has a long history of working all
three terms. The loss of employment in any term causes her the same “economic
insecurity,” regardless of when it takes place. Section 3 of the Law, 43 P.S. §752.
When Claimant was not assigned three or four classes in the 2019 Summer term, she
suffered a “loss of wages” from “[i]nvoluntary unemployment.” Id. Claimant
argues that for part-time faculty, the period of ineligibility set forth in Section
402.1(1) of the Law should apply only to the periods between each of the three
“regular terms” of the College.
As explained by amicus curiae, United Academics of Philadelphia, the
landscape of higher education has evolved. The trend is toward more part-time
instructors and a smaller tenured faculty. United Academics points out that in 1975,
25% of college instruction was done by part-time faculty; by 2011 that number
exceeded 40%.2 At the same time, part-time faculty “earn substantially less money
than tenured and tenure-track faculty”; do not receive benefits like health insurance
2
As part of its role in the administration of the Federal-State Unemployment Compensation
Program, the Employment and Training Administration of the United States Department of Labor
issues Unemployment Insurance Program Letters that interpret federal law requirements relating
to unemployment compensation. Montgomery County Head Start v. Unemployment
Compensation Board of Review, 938 A.2d 1137, 1140, n.6 (Pa. Cmwlth. 2007). In the
Unemployment Insurance Program Letter 5-17 (December 22, 2016), Attachment III at 2, it was
stated that during the 1975-1976 academic year, approximately 25% of instructors in institutions
of higher education were part-time faculty; by 2011 that number had increased to over 40%.
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or retirement contributions; and do not enjoy employment stability as do their
tenured and tenure-track colleagues. Amicus Curiae Brief at 13.
Claimant and amicus curiae make excellent points and have identified
a problem with the application of Section 402.1(1) of the Law to part-time faculty
members. However, as the majority aptly observes, Section 402.1(1) makes no
distinction between full-time and part-time instructional employees. Prunty v.
Unemployment Compensation Board of Review (Pa. Cmwlth., No. 1761 C.D. 2019,
filed May 4, 2021), slip op. at 15 (Maj.). It is for the legislature to consider whether
Section 402.1(1)’s broad eligibility limitation imposed on all teachers, whether
employed part-time or full-time, should be adjusted.
Given our precedent, the College’s Summer term cannot be considered
a “regular term” because of the greatly reduced student enrollment and
commensurate fewer course offerings. Accordingly, I am constrained to agree with
the majority’s holding in this case.
____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita
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