IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Cynthia Santore

- Smith, :

Petitioner :

:

v. : No s

. 1841 & 1842 C.D. 20 1 7

: Submitted: September 28 , 20 1 8 Unemployment Compensation : Board of Review, :

Respondent :

BEFORE: HONORABLE ROBERT SI MPSON, 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 t he

Unemployment Compensatio n Board of Review (Board) o rder s 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) provid ed Claimant with a reasonable assurance letter that

her work would continue when the school reopened the following term. For the

following reasons, we affirm.2 I.

Claim ant has been employed as a part

- time Lead Food Service worker

wit h Employer since May 11, 2015

. O n June 19, 2017, her school closed for the

sum mer and Employer sent Claimant a letter informing her that she had a

reasonable assurance that she w ould have the opportunity to work in the same

capacity when the school reopened on September 5, 20 17.

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 det erminations 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).3 [ 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 Schoo l 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 in eligibility under Section 402.1(2) of the Law. Claimant

appealed to the Board, which

, on October 11, 2017

, i ssued two orders affirming the

Referee’s decisions. Claimant requested re considerati on of those orders, and the

Board denied reconsideration on No vember 8, 2017

. Claimant petitioned for

review of the d enial of the reconsideration order on November 14, 2017 , and we

consolidated the matter s for review. 2

2 The Boa rd in its brief states that this appeal is subject to t he 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 p etition for r eview would have been unt imely. However, in h er p etition for

r eview , Claimant specifically states that she is appea ling the November 8, 2017 order denying

reconsideration.

(Footnote continued on next page...)4 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

f or 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 institutio n 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 sch ool’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

actio n 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 preju d ice 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 la w. Ensle , 740 A.2d at 779

. Claimant’s

request for reconsideration was not based upon any new evidence or changed circumstances.5

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 re quest to reconsider its orders denying

benefits under Section 402.1(2) of the Law. Therefore, we affirm.

__________________________________ DAN PELLEGRINI, Senior JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Cynthia Santore

- Smith, :

Petitioner :

:

v. : No s

. 1841 & 1842 C.D. 201 7

: Unemployment Compensation : Board of Review, :

Respondent

O R D E R

AND NOW, this 19 th day of October , 2018, the order s of the

Unemployment Compensation Board of Review dated November 8, 2017

, are

affi rmed.

__________________________________ DAN PELLEGRINI, Senior Judge