IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Peter D. Kolenich, : 

Petitioner :

:

v. : No. 18 C.D. 2021

: Argued: October 21, 2021

Unemployment Compensation Board :

of Review, :

Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge 

HONORABLE J. ANDREW CROMPTON, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION

BY JUDGE LEAVITT FILED: December 14, 2021

Peter D. Kolenich (Claimant) petitions for this Court’s review of an 

adjudication of the Unemployment Compensation Board of Review (Board) that 

denied his claim for unemployment compensation benefits, which he sought after

two of his three part-time university employers terminated his employment. The 

Board held that Section 402.1(1) of the Unemployment Compensation Law (Law)1

barred his claim because one of the three university employers gave him reasonable 

assurance of a part-time position in the fall semester. We reverse. 

In the spring semester of the 2019-2020 academic year, Carnegie 

Mellon University (Carnegie Mellon) employed Claimant as a part-time adjunct 

professor. On April 6, 2020, Carnegie Mellon offered Claimant continued 

employment for the fall, i.e., from September 1, 2020, through December 31, 2020. 

Claimant signed Carnegie Mellon’s reasonable assurance letter on April 6, 2020. 

1 Act of December 5, 1936, 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(1). 
2

During the spring semester of 2020, Claimant also worked as a parttime adjunct professor for Chatham College (Chatham) and Duquesne University 

(Duquesne). Neither institution offered Claimant employment for the fall semester 

of 2020. On May 24, 2020, Claimant filed a claim for unemployment compensation 

benefits and listed all three schools as separating employers, since he had no work 

after April. The Duquesne UC Service Center (Service Center) issued three notices 

of determination on Claimant’s application for unemployment benefits.

2

 

In its determination of August 19, 2020, the Service Center found 

Claimant ineligible for benefits because Carnegie Mellon gave him “reasonable 

assurance” that he was going to “return to work following the break between terms 

under similar economic terms and conditions as to prior to the break.” Certified 

Record (C.R.), Item No. 4, Notice of Determination, 8/19/2020, at 1. The 

determination also stated as follows:

Important: If you receive multiple determinations ruling on the 

same week or weeks and one is eligible and the other is 

ineligible, the ineligible determination takes precedence. 

Id. (emphasis added). On August 31, 2020, the Service Center issued another 

determination finding Claimant eligible for benefits and listing Claimant’s earnings 

from Chatham and Duquesne but not from Carnegie Mellon. Finally, on September 

8, 2020, the Service Center issued a third determination finding Claimant eligible 

2 The determinations of August 31, 2020, and September 8, 2020, were not admitted into the record 

before the Referee. Claimant, who appeared before the Referee pro se, testified that he appealed 

the three determinations. After the Referee issued a decision, Claimant’s counsel asked the Board 

to take judicial notice of these determinations. Claimant Brief in Support of Appeal, at 4; Certified 

Record (C.R.) 184. Thus, the August 31, 2020, and September 8, 2020, notices of determination 

are part of the certified record on appeal but were not referenced in the Referee’s findings of fact.
3

for benefits and listed his earnings from all three employers, Chatham, Duquesne, 

and Carnegie Mellon. 

Uncertain of how to put the three determinations together, Claimant 

appealed the Service Center’s determination of August 19, 2020. Claimant 

explained his uncertainty as follows:

I have worked for 3 universities over the past year ... I agree that 

I have not been unemployed from Carnegie Mellon since, at that 

school, I teach in an academic program that follows a typical fallspring semester schedule. [F]ortunately, [it] will have some 

students this fall, so I will be able to return to work.... I received 

3 determination letters: 1 denial, and 2 that state that I am 

eligible. The letters also say that the ineligible determination 

takes precedence, so it sounds like I will not be getting any 

unemployment benefits. If I am mistaken, I apologize for taking 

up your time. If I am correct, I would like to appeal that decision 

and ask for compensation for the weeks I have been 

uncharacteristically unemployed.

C.R., Item No. 5, Claimant’s Petition for Appeal from Determination with 

Attachments, 8/24/2020, at 3-4 (emphasis added). 

On September 21, 2020, the Referee conducted a hearing on the matter. 

At the hearing, Carnegie Mellon presented the testimony of its human relations 

officer, Jennifer May, and Claimant testified on his own behalf. Neither Chatham 

nor Duquesne participated. 

May testified that Claimant worked for Carnegie Mellon as an adjunct 

instructor in the 2019-2020 academic year, and on April 6, 2020, he was offered 

employment for the 2020-2021 academic year. On September 1, 2020, Claimant

returned to work and was still working as of the date of the hearing. May explained 

that teaching assignments to adjunct professors change from semester to semester, 
4

depending upon enrollment. Accordingly, Carnegie Mellon could assign Claimant

to teach three classes one semester and two classes the next semester. 

Claimant testified that he appealed the August 19, 2020, determination 

because the Service Center found him ineligible for any unemployment benefits 

notwithstanding his unexpected loss of employment at Chatham and Duquesne. 

Claimant explained that he teaches English as a second language at Chatham and 

Duquesne, and he teaches communications in the School of Computer Science at 

Carnegie Mellon. At Carnegie Mellon, Claimant teaches in the graduate program 

that offers classes year-round because it is a 16-month program, comprised of four

terms in a row. Claimant generally teaches only the first two terms. He became

unemployed as of April 2020 but returned to work for Carnegie Mellon in the fall of 

2020.

The Referee denied Claimant unemployment compensation benefits. 

The Referee reasoned that because Claimant received reasonable assurance of 

employment from one of his three employers, i.e., Carnegie Mellon, this precluded 

“all school wages from being used for the purposes of financial eligibility for 

unemployment benefits, during the summer, which is between academic terms.” 

Referee Decision, 12/18/2020, at 2-3. Claimant appealed the Referee’s decision to 

the Board, arguing that only his wages from Carnegie Mellon should be excluded in 

determining his eligibility for unemployment benefits.

The Board rejected Claimant’s appeal. It adopted the Referee’s 

conclusion and then stated: 

The Board adds a finding, which shall read, “The claimant did 

not expect to have work from the employer over the summer.” 

The Board adds a finding, which shall read, “Adjunct professors 

are not guaranteed summer work and only get it if work becomes 

available.” 
5

Board Adjudication, 12/18/2020, at 1. The Board also rejected Claimant’s argument 

that it should follow guidance from the United States Department of Labor that 

would have allowed his wages from Chatham and Duquesne to be used to determine 

Claimant’s eligibility for unemployment benefits. The Board characterized this 

guidance as “not binding.” Id.

Claimant then petitioned for this Court’s review.3 On appeal, he raises 

two issues. First, he argues that the Board erred in holding that under Section 

402.1(1) of the Law, his ineligibility determination as to Carnegie Mellon took 

precedence over his two eligibility determinations as to Chatham and Duquesne. 

Second, he argues that Section 402.1(1) of the Law, as applied by the Board, violates 

equal protection of the law because it treats teachers differently, depending on 

whether their second employer is not a school.

We begin with a review of the relevant legal principles. Section 402.1

of the Law states, in relevant part, as follows: 

Benefits based on service for educational institutions pursuant to 

Article X, XI or XII shall as hereinafter provided be payable in 

the same amount, on the same terms and subject to the same 

conditions as outlined in section 404(g) [43 P.S. §804 (relating 

to rate and amount of compensation)]; 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 

3 This Court’s review determines 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 Compensation Board of Review, 83 A.3d 484, 486 n.2 (Pa. Cmwlth. 

2014).
6

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). The basic principle is that “service for 

educational institutions” qualifies for unemployment benefits. There is an exception 

in subsection (1) for benefits that would otherwise be payable during a school break, 

so long as the employee receives “reasonable assurance” of a job after the break. 

Where school employees are “reasonably assured of resuming employment in a 

learning institution” after a break, they are disqualified from receiving benefits 

during the break. Penn Hills School District v. Unemployment Compensation Board 

of Review, 437 A.2d 1213, 1217 (Pa. 1981). 

The Pennsylvania Department of Labor and Industry has explained its 

application of Section 402.1(1) for the specific circumstance where, as here, the

employee is a teacher who works for more than one employer. The Department’s 

published guidance states as follows:

When a claimant has earned both school and nonschool wages 

during the base-year period and has been denied benefits under 

the provisions of Section 402.1, financial eligibility for the denial 

period must be recomputed using solely the nonschool wages. 

After the recomputation, a school employee who is financially 

eligible based solely on his or her nonschool wages may collect 

[Unemployment Compensation] UC during the denial period if 

he or she is otherwise eligible for benefits.

Generally, if the claimant works for more than one school 

employer, the denial period under Section 402.1 begins with the 
7

first school out and ends with the last school back. In addition, if 

the claimant works for more than one school employer and has 

reasonable assurance with at least one school employer, the 

claimant cannot use any school wages to establish financial 

eligibility during the denial period.

School Employees, Benefit Eligibility, OFFICE OF UNEMPLOYMENT COMPENSATION, 

at https://www.uc.pa.gov/unemployment-benefits/Am-I-Eligible/benefiteligibility/Pages/School-Employees.aspx (last visited 12/13/2021) (emphasis 

added). Stated otherwise, a teacher who loses a second job with a non-school 

employer is eligible for unemployment benefits, but a teacher who loses a second 

job with a school employer is ineligible.

Claimant contends that the Board’s above-stated interpretation of 

Section 402.1(1) is at odds with the precept that the Law is to be liberally construed 

in favor of employees who find themselves unemployed through no fault of their 

own. Section 3 of the Law, 43 P.S. §752 (“Security against unemployment and the 

spread of indigency can best be provided by the systematic setting aside of financial 

reserves to be used as compensation for loss of wages by employes during periods 

when they become unemployed through no fault of their own.”). He argues that the

exception to eligibility for benefits set forth in Section 402.1(1) is limited to “an

educational institution” that gave reasonable assurance, i.e., Carnegie Mellon, but it 

does not apply to “an educational institution” that did not, i.e., Chatham and 

Duquesne. His permanent and unexpected loss of employment with Chatham and 

Duquesne entitles him to unemployment benefits. Additionally, he argues that the 

Board’s construction of Section 402.1(1) is discriminatory. He argues there is no 

reason to treat teachers who work for multiple school employers differently from 

teachers who work for multiple employers, some of which are educational 

institutions, and some of which are not. 
8

In support of his statutory construction argument, Claimant observes 

that Section 402.1(1) was copied almost verbatim from the Federal Unemployment 

Tax Act (FUTA), 26 U.S.C. §3304(a)(6)(A)(i).4 The United States Department of 

Labor has construed the federal statutory paradigm to allow for the payment of 

benefits in circumstances where the teacher, who works for multiple school 

employers, does not receive reasonable assurance from all of those school 

employers. This construction was set forth in a letter ruling.5 Claimant also observes 

4 Section 3304(a)(6)(A)(i) of FUTA states as follows: 

(a) Requirements.--The Secretary of Labor shall approve any State law submitted 

to him, within 30 days of such submission, which he finds provides that—

* * *

(6)(A) compensation is payable on the basis of service to which section 3309(a)(1)

applies, in the same amount, on the same terms, and subject to the same conditions 

as compensation payable on the basis of other service subject to such law; except 

that--

(i) with respect to services in an instructional, research, or, principal 

administrative capacity for an educational institution to which 

section 3309(a)(1) [26 U.S.C. §3309(a)(1) (relating to state law 

coverage for services provided to government entities,] applies,

compensation shall not be payable based on such services for any 

week commencing during the period between two successive 

academic years or terms (or, when an agreement provides instead 

for a similar period between two regular but not successive terms, 

during such period) 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 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[.]

26 U.S.C. §3304(a)(6)(A)(i).

5 The Unemployment Insurance Program Letter (UIPL) No. 5-17 states, in relevant part:

(d) Guidance for Making the Determination

* * *

(5) Multiple-employer situations--Some claimants subject to the between and 

within denial provisions provide services for more than one educational employer 

... if the claimant has a contract or reasonable assurance with at least one but not 
9

that the State of New York limits the claimant’s ineligibility to the school that gives 

reasonable assurance, not the school that does not. Wages from the separating school 

that does not give reasonable assurances can be used to calculate benefits.6

The Board responds that under Section 402.1(1) of the Law, an 

employee is ineligible for benefits if he has reasonable assurance that he “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). It argues

that the use of the article “any” before “educational institution” means that if an 

all employers, states have two options when determining which services would be 

the basis for the UC payments.

a. Option 1: The state determines UC eligibility between or within 

terms, in accordance with state law, based on the services performed 

for the employer(s) for which there is no “contract” or “reasonable 

assurance.” The services for the educational employers for which 

there is a “contract” or “reasonable assurance” are not available for 

determining eligibility for UC between terms.

b. Option 2: The state agency looks at all of the services and 

determines whether, as a whole, the economic conditions 

prerequisite requirement is met. If it is, UC is not payable between 

or within terms based on any of these services. If the economic 

conditions requirement is not met, all of these services would be 

used to determine eligibility for UC. (If the state uses this option, 

the state may, if permitted under state law, determine that the 

unemployment is not attributable to those educational employers 

who provided a contract or reasonable assurance and relieve them 

of charges or reimbursement for their portion of the UC paid in 

accordance with UIPL Nos. 21-80 and 44-93.)

UIPL No. 5-17, 12/22/2016, at 7-8. See UNITED STATES DEPARTMENT OF LABOR, EMPLOYMENT 

& TRAINING ADMINISTRATION, https://wdr.doleta.gov/directives/attach/UIPL/UIPL_5-17.pdf (last 

visited 12/13/2021) (emphasis added).

6 On June 29, 2020, Claimant filed an application asking this Court to take judicial notice of the 

UIPL No. 5-17; the webpage of the Commonwealth of Pennsylvania, Department of Labor and 

Industry showing its policy statements regarding its approach to payment of benefits for claimants 

earning school and non-school wages; and the webpage of the New York Department of Labor 

that follows the approach provided in the UIPL No. 5-17. The Board opposes the request because 

Claimant did not ask the Referee to take judicial notice of these documents. Board Brief at 27-28. 
10

employee has reasonable assurance from “even one school employer, the claimant

cannot use any school wages to establish financial eligibility.” Board Brief at 9. It 

argues that the phrase “any such capacity” coupled with “any educational 

institution” signifies an intention to treat wages earned in a school differently from 

non-school wages, which does not offend equal protection principles. The Board 

argues that if a teacher has “at least one job available for the following year or term, 

he is not eligible for benefits during the break.” Id. at 17. It further argues that its

construction of Section 402.1(1) is entitled to deference.7 

This case turns on the intent of Section 402.1(1) of the Law, which 

states, in relevant part, as follows:

With respect to service performed ... 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 ... 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). The word “an” denotes a singular employee, 

working in “an” instructional capacity for “an” educational institution. The sentence 

is written in the singular. Id. If “an” employee receives reasonable assurance that

he will perform “such services” (as a teacher) after the break for “an” educational 

7 The Board argues that the Department’s interpretation published on its website is a policy that is 

entitled to this Court’s deference. See Harmon v. Unemployment Compensation Board of Review, 

207 A.3d 292 (Pa. 2019). By contrast, the guidance for the United States Department of Labor 

has little persuasive value in Pennsylvania. See Montgomery County Head Start v. Unemployment 

Compensation Board of Review, 938 A.2d 1137 (Pa. Cmwlth. 2007); Glassmire v. Unemployment 

Compensation Board of Review, 856 A.2d 269 (Pa. Cmwlth. 2004).
11

institution, the employee is ineligible for benefits. The obverse is also the case. If 

“an employee” does not receive reasonable assurance that he will perform “such 

services” (as a teacher) after the break for an educational institution, then the 

employee is eligible for benefits. Two institutions, Chatham and Duquesne, did not 

provide Claimant with reasonable assurance that he would perform “such services” 

after the break. Further, Claimant does not have a contract from “any educational 

institution” to perform the services in the fall that he provided at Chatham and 

Duquesne in the spring term. Simply, the exception provided in Section 402.1(1) of 

the Law does not apply to wages Claimant earned at Chatham and Duquesne. 

The Board construed the phrase “any educational institution” to mean 

one of several educational institutions that employed a teacher in the first term. We 

disagree. “Any educational institution” means simply a new employer. In that case, 

the school that employed the teacher in the first term for “such services” will not 

give him a contract or reasonable assurance letter. However, because he has a 

“contract” from a new school to provide “such services” for the fall semester, he is 

not eligible for benefits. 43 P.S. §802.1(1). 

The Board failed to consider that Section 402.1(1) is addressed to a 

singular teacher at a single educational institution. Instead, the Board gives a broad 

construction to the exception in Section 402.1(1) from eligibility for benefits.

However, exceptions in a statute are to be narrowly construed. See Phillips v. State 

Ethics Commission, 470 A.2d 659, 661 (Pa. Cmwlth. 1984) (stating that “remedial 

legislation [] is to be liberally construed ... and exclusions under the [a]ct should be 

narrowly, rather than broadly, determined”); see also, e.g., Penn Hills School 

District, 437 A.2d at 1215 (holding that an unemployed worker can be denied 
12

benefits only by explicit language in the Law that clearly and plainly excludes 

coverage). 

Although not a model of clarity, Section 402.1(1) was intended to 

preclude benefits in the case of the anticipated and temporary loss of wages during 

school breaks commonly incurred by a professional employed by educational 

institutions, but not for a permanent and unanticipated loss of wages from an 

educational institution. This view is reinforced by the statute’s focus on benefits 

paid during the period between school years, semesters or such breaks as sabbaticals, 

as well as by the Law’s underlying purpose to provide a safety net for those 

unemployed through no fault or design of their own. 43 P.S. §752. Construing the 

phrase “reasonable assurance [of employment after the break by] any educational 

institution” to apply to the situation in which a teacher loses a job in one school but 

secures a job in another school for the period after the break is consistent with this 

statutory intent. The Board’s application of Section 402.1(1) to the circumstance 

where there is a permanent and unanticipated loss of employment at an educational 

institution does not accord with language of Section 402.1(1) or the underlying 

purpose of the Law.

This case turns on the intent of Section 402.1(1) of the Law, as 

expressed in its words. 1 Pa. C.S. §1921(a). We hold that Claimant’s loss of 

employment at Chatham and Duquesne did not trigger the exception in Section 

402.1(1) of the Law because neither educational institution gave him reasonable 

assurance of employment in the next term.

8

 Nor did he have reasonable assurance 

8 Because we hold that the Board erred, we need not address Claimant’s constitutional issue. 

Likewise, we need not decide Claimant’s request to take judicial notice of UIPL No. 5-17 and the 

State of New York’s position. The law is evidence of itself, and thus, judicial notice is

unnecessary. In any case, we agree with the Board that the construction of the United States 

Department of Labor is not binding. Glassmire, 856 A.2d 269.
13

of employment from “any educational institution” in the next term to do the work he 

had done at Chatham and Duquesne.

 ____________________________________________

 MARY HANNAH LEAVITT, President Judge Emerita
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Peter D. Kolenich, : 

Petitioner :

:

v. : No. 18 C.D. 2021

:

Unemployment Compensation Board :

of Review, :

Respondent :

O R D E R

AND NOW, this 14th day of December, 2021, the order of the 

Unemployment Compensation Board of Review dated December 18, 2020, is 

REVERSED. The application to take judicial notice filed by Peter D. Kolenich is 

dismissed as moot. 

 ____________________________________________

 MARY HANNAH LEAVITT, President Judge Emerita