C. Santore-Smith v. UCBR ( 2018 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Cynthia Santore-Smith, :
Petitioner :
:
v. : Nos. 1841 & 1842 C.D. 2017
: Submitted: September 28, 2018
Unemployment Compensation :
Board of Review, :
Respondent :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI FILED: October 19, 2018
Cynthia Santore-Smith (Claimant) petitions for review of the
Unemployment Compensation Board of Review (Board) orders denying her
request for reconsideration of the Board’s orders which affirmed two Referee
decisions finding her ineligible for benefits because the School District of
Philadelphia (Employer) provided Claimant with a reasonable assurance letter that
her work would continue when the school reopened the following term. For the
following reasons, we affirm.
I.
Claimant has been employed as a part-time Lead Food Service worker
with Employer since May 11, 2015. On June 19, 2017, her school closed for the
summer and Employer sent Claimant a letter informing her that she had a
reasonable assurance that she would have the opportunity to work in the same
capacity when the school reopened on September 5, 2017.
On June 20, 2017, Claimant filed two applications for unemployment
compensation (UC) benefits: one for the week ending July 1, 2017, and one for the
week ending July 8, 2017. The Department of Labor and Industry (Department)
issued two separate determinations denying benefits under Section 402.1(2) of the
Unemployment Compensation Law (Law)1 because her reasonable assurance of
employment when school resumed in September rendered her ineligible. Claimant
appealed these determinations.
Employer did not participate in the hearing before the Referee.
Claimant, however, testified that she was a ten-month employee and that her last
day of work for the 2016-2017 school year was June 19, 2017, when school closed
for summer break. She also admitted that Employer notified her in writing that she
would return to her position when school reconvened for the fall term on
September 5, 2017. In response to the Referee’s question as to why she applied for
UC benefits if she knew she would be returning to work in September, she stated:
1
Section 402.1(2) of the Unemployment Compensation Law, Act of December 5, 1936,
Second Ex. Sess., P.L. (1937) 2397, added by Act of July 6, 177, P.L. 41, as amended, 43 P.S. §
802.1(2).
2
[C]: Because it’s only for two months. I work two jobs
and when I work part-time at WAWA, the kids work
most of the hours because they’re on summer break. The
college kids. So anybody that works part-time gets
pushed aside.
***
[R]: And that is a different issue . . . altogether, but
please do continue, yes.
[C]: And then the School District, I’m Lead Food
Service, so I work for the School District, but I work in
food. So I leave in June and I go back in September.
They take out my unemployment in my check so why
can’t I collect it for two months?
(Record (R.) at Item No. 9, Referee’s Hearing: Transcript of Testimony, 8/10/17,
p. 5.)
The Referee issued two identical opinions affirming the Department’s
determinations of ineligibility under Section 402.1(2) of the Law. Claimant
appealed to the Board, which, on October 11, 2017, issued two orders affirming the
Referee’s decisions. Claimant requested reconsideration of those orders, and the
Board denied reconsideration on November 8, 2017. Claimant petitioned for
review of the denial of the reconsideration order on November 14, 2017, and we
consolidated the matters for review.2
2
The Board in its brief states that this appeal is subject to the two October 11, 2017
orders on the merits. If those were the orders before us, we would quash the appeal because her
November 14, 2017 petition for review would have been untimely. However, in her petition for
review, Claimant specifically states that she is appealing the November 8, 2017 order denying
reconsideration.
(Footnote continued on next page…)
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II.
Under Section 402.1(2) of the Law, benefits will not be paid for any
services rendered in an educational institution in any capacity other than
instructional, research or principal administrative
for any week of unemployment commencing during the
period between two successive academic years, or during
a similar period between two regular terms . . . 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(2) (emphasis added).
Having admitted in her Questionnaire and before the Referee that she
had received a letter giving her a reasonable assurance that she would return to
work for the school’s fall term, Claimant does not dispute that she was likely to
(continued…)
This Court’s scope of review of a Board decision to grant or deny a request for
reconsideration is limited to determining whether the Board abused its discretion. Laster v.
Unemployment Compensation Board of Review, 80 A.3d 831 (Pa. Cmwlth. 2013). An abuse of
discretion occurs if the Board’s decision demonstrates evidence of bad faith, fraud, capricious
action or abuse of power. Ensle v. Unemployment Compensation Board of Review, 740 A.2d
775, 779 (Pa. Cmwlth. 1999). In addition, the Board’s regulations provide that reconsideration
will only be granted “for good cause in the interest of justice without prejudice to any party.” 34
Pa. Code § 101.111(b). In determining whether good cause exists, the Board must consider
whether the party requesting reconsideration has presented new evidence or changed
circumstances, or whether it failed to consider relevant law. Ensle, 740 A.2d at 779. Claimant’s
request for reconsideration was not based upon any new evidence or changed circumstances.
4
return to work after the summer break. Her only argument on appeal is that
because she had been granted UC benefits the prior year, she is entitled to receive
them again. However, we have held that even though a claimant may erroneously
receive UC benefits in past periods, it does not preclude the Board from denying a
claimant benefits for subsequent periods during which a claimant is ineligible.
Jimoh v. Unemployment Compensation Board of Review, 902 A.2d 608 (Pa.
Cmwlth. 2006).
Because Claimant received a reasonable assurance letter that she
would be able to return to work for Employer the following school term, the Board
did not abuse its discretion in denying her request to reconsider its orders denying
benefits under Section 402.1(2) of the Law. Therefore, we affirm.
__________________________________
DAN PELLEGRINI, Senior Judge
5
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Cynthia Santore-Smith, :
Petitioner :
:
v. : Nos. 1841 & 1842 C.D. 2017
:
Unemployment Compensation :
Board of Review, :
Respondent
ORDER
AND NOW, this 19th day of October, 2018, the orders of the
Unemployment Compensation Board of Review dated November 8, 2017, are
affirmed.
__________________________________
DAN PELLEGRINI, Senior Judge