adopting a “strong deference” standard for reviewing an agency’s interpretation of a statute it is charged to enforce
How later courts described this case
- adopting a “strong deference” standard for reviewing an agency’s interpretation of a statute it is charged to enforce
Written by the judges who cited it.
The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Rose Tree Media School District, :
Petitioner :
:
v. :
:
Unemployment Compensation :
Board of Review, : No. 366 C.D. 2022
Respondent : Argued: March 7, 2023
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
OPINION BY
JUDGE COVEY FILED: May 19, 2023
Rose Tree Media School District (Employer) petitions this Court for
review of the Unemployment Compensation (UC) Board of Review’s (UCBR)
March 21, 2022 order affirming (as modified) the Referee’s decision, and granting
Martin McGee (Claimant) UC benefits under Section 402.1(5) of the UC Law
(Law).1 The sole issue before this Court is whether Section 402.1(5) of the Law
applies in this case.2 After review, this Court affirms in part and reverses in part.
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(5) (relating to claimants who are
denied UC benefits on the basis of reasonable assurance, but are not offered an opportunity to
perform such service in the second of such academic years or terms). The Referee granted
Claimant UC benefits based on Section 402.1(2) of the Law, 43 P.S. § 802.1(2) (relating to
reasonable assurance).
2
In its Statement of Questions Involved, Employer added the additional issue of whether
Claimant’s return to work on the date expected is a relevant question under Section 402.1(5) of
the Law. See Employer Br. at 4. This issue is subsumed in Employer’s first issue and will be
addressed accordingly.
Facts
On May 23, 2014, Employer hired Claimant as a full-time bus driver.
During the summer months, Employer typically has an extended school year (ESY)
for special education students and summer school for middle school and high school
students who did not pass their classes that year. Claimant worked for Employer
during the ESY and summer school sessions in 2014, 2017, 2018, and 2019.
Claimant worked during the 2019-20 academic school year. His last
day of work during that year was March 13, 2020. Due to the COVID-19 pandemic
(Pandemic) in-person school was suspended and therefore bus drivers were no
longer needed after March 13, 2020. Notwithstanding, Employer paid Claimant
until the end of the academic school year - June 24, 2020. On May 26, 2020,
Employer sent Claimant a letter of reasonable assurance indicating its intent to
employ Claimant in the 2020-21 academic school year at terms and conditions not
substantially less than those he worked under in the 2019-20 academic school year.
Because of the Pandemic, Employer did not operate its 2020 summer school, only
its ESY, and bus drivers were not needed for the ESY since it was conducted
virtually.
Claimant applied for UC benefits for the week ending June 20, 2020.
Students returned to school on August 31, 2020; however, Claimant was furloughed
from August 31, 2020 through September 28, 2020, and then returned to work as a
bus driver thereafter. UC benefits for the month Claimant was furloughed are not
currently before this Court. However, Employer disputes herein Claimant’s receipt
of UC benefits beginning with the week ending June 20, 2020.
On September 10, 2020, the Harrisburg UC Service Center denied
Claimant UC benefits under Section 402.1(2) of the Law because Employer had sent
Claimant a notice, wherein it provided Claimant reasonable assurance that he would
work the next academic year. Claimant appealed from the UC Service Center’s
2
determination, and a Referee held a hearing on February 22, 2021. On March 17,
2021, the Referee reversed the UC Service Center’s determination, concluding that
Claimant was not disqualified from receiving UC benefits under Section 402.1(2) of
the Law because he was a year-round employee, and, thus, the reasonable assurance
doctrine did not apply.
Employer appealed to the UCBR. On March 21, 2022, the UCBR
affirmed the Referee’s decision (as modified), and granted Claimant UC benefits
under Section 402.1(5) of the Law. The UCBR concluded that Claimant was an
academic year employee, not a year-round employee. However, since Claimant did
not begin working until September 28, 2020, Section 402.1(5) of the Law applies.
Specifically, the UCBR ruled that Section 402.1(5) of the Law applies when a
claimant does not “commence employment with the employer when expected after
a scheduled break in the academic school year due to circumstances beyond [his]
control.” Reproduced Record (R.R.) at 109a (UCBR Dec. at 3). Employer appealed
to this Court.3, 4
Discussion
Employer argues that, under the statute’s clear language, Section
402.1(5) of the Law does not apply herein because Claimant was offered the
opportunity to perform services as a bus driver during the 2020-21 academic year.
Claimant rejoins that Section 402.1(5) of the Law provides an exception to the
reasonable assurance doctrine when a school employer provides reasonable
3
“‘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).
4
On May 12, 2022, Claimant filed a Notice of Intervention. On November 15, 2022, the
UCBR filed notice that it would not file a brief.
3
assurances to its non-instructional support staff, but then fails to provide
employment following the break.
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:
....
(2) With respect to services performed after October 31,
1983, in any other capacity [than an instructional,
research, or principal administrative capacity] for an
educational institution, benefits shall not be paid on the
basis of such services to any individual for any week
which commences during a period between two successive
academic years or terms if such individual performs
such services in the first of such academic years or
terms and there is a reasonable assurance that such
individual will perform such services in the second of
such academic years or terms [(reasonable assurance
doctrine)].
....
(5) With respect to an individual who performs services
described in clause (2) of this section and who pursuant to
clause (2) or (4) of this section is denied benefits for the
period between academic years or terms, such individual
if he is not offered an opportunity to perform such
service in the second of such academic years or terms
shall be paid benefits for the period which commences
with the first week he was denied benefits solely by the
reason of clause (2) or (4) of this section, provided he had
filed timely claims for benefits throughout the denial
period and was otherwise eligible for benefits.
43 P.S. § 802.1 (emphasis added).
Section 65.161 of the Department of Labor and Industry’s
(Department) Regulations describes:
4
(a) For purposes of [S]ection 402.1 of the [L]aw . . . , 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:
(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.
(b) For the purposes of subsection (a), an offer of
employment is not bona fide if both of the following
conditions exist:
(1) The educational institution or educational
service agency does not control the circumstances
under which the individual would be employed.
(2) The educational institution or educational
service agency cannot provide evidence that the
individual or similarly situated individuals
normally perform services in the second academic
period.
(c) For the purposes of subsection (a), economic terms
and conditions of employment include wages,
benefits[,] and hours of work.
34 Pa. Code § 65.161 (italic and bold emphasis added).
Section 402.1(2) of the Law
Here, the UCBR concluded:
There is no dispute that in May 2020[,] [] [E]mployer sent
[] [C]laimant a letter of reasonable assurance indicating
its intent to employ [] [C]laimant in the same or similar
capacity, and at terms and conditions not substantially
5
less, than he worked under during the 2019-20 academic
school year. [] [C]laimant argues that he is essentially a
year-round employee because he has worked in previous
summers during [] [E]mployer’s ESY and summer school
sessions. The [UCBR] credits the testimony of []
[E]mployer’s witness that [] [C]laimant did so in the
summers of 2014, 2017, 2018, and 2019 over []
[C]laimant’s contrary testimony. However, the record
shows that [] [C]laimant is subject to a [Collective
Bargaining Agreement] [(]CBA[)], which defines []
[C]laimant’s school year as beginning the third Thursday
in August and ending no later than June 30[,] and which
does not guarantee summer work for academic year
employees. Employees such as [] [C]laimant who wish to
work during the summer must sign up and then bid on
summer work. There is no penalty for employees such as
[] [C]laimant if they do not wish to work during the
summer. Therefore, despite [] [C]laimant’s prior summer
work for [] [E]mployer, the [UCBR] concludes that []
[C]laimant was an academic year employee and not a year-
round employee and the reasonable assurance provision in
Section 402.1(2) of the Law applies to [] [C]laimant.
R.R. at 108a (UCBR Dec. at 2) (emphasis added). This Court applied the same
reasoning in Rose Tree Media School District v. Unemployment Compensation
Board of Review, 280 A.3d 1125 (Pa. Cmwlth. 2022) (Rose Tree I).5
In Rose Tree I, this Court concluded, in identical factual circumstances:
The . . . testimony evidences that pursuant to the CBA,
which governed Employer’s and [the c]laimant’s
employment relationship, [the c]laimant worked from the
third Thursday in August to the middle of June. The fact
that []he voluntarily signed up for summer work does not
change the fact that []he performed “services [ ] after
October 31, 1983, in any other capacity [than an
instructional, research, or principal administrative
capacity] for an educational institution,” and therefore
UC benefits shall not be paid on the basis of such
services to any individual for any week which commences
during a period between two successive academic years or
5
This Court decided Rose Tree I on August 8, 2022, five months after the UCBR issued
its decision in this case.
6
terms if such individual performs such services in the
first of such academic years or terms and there is a
reasonable assurance that such individual will perform
such services in the second of such academic years or
terms.
43 P.S. § 802.1(2) (emphasis added). The plain language
of the statute mandates that [the c]laimant is not entitled to
UC benefits.
Rose Tree I, 280 A.3d at 1130. Accordingly, the UCBR properly concluded in the
instant appeal that because of the reasonable assurance doctrine Claimant was
disqualified from receiving UC benefits under Section 402.1(2) of the Law.6
Section 402.1(5) of the Law
However, the UCBR found that the reasonable assurance doctrine did
not apply because Claimant did not start work as expected in “the second of such
academic years or terms[.]” 43 P.S. § 802.1(5). Specifically, the UCBR concluded:
6
The Dissent spends a significant portion of its discussion expressing its dissatisfaction
with Rose Tree I and arguing against the holding therein. However, the Pennsylvania Supreme
Court has instructed:
Stare decisis is “a principle as old as the common law itself.”
Morrison Informatics, Inc. v. Members 1st Fed. Credit Union, . . .
139 A.3d 1241, 1249 ([Pa.] 2016) (Wecht, J., concurring). The
phrase “derives from the Latin maxim ‘stare decisis et non quieta
movere,’ which means to stand by the thing decided and not disturb
the calm.” Ramos v. Louisiana, ___ U.S. ___, 140 S. Ct. 1390, 1411
. . . (2020) (Kavanaugh, J., concurring in part). “Without stare
decisis, there would be no stability in our system of jurisprudence.”
Flagiello v. [Pa.] Hosp., . . . 208 A.2d 193, 205 ([Pa.] 1965). . . . As
the United States Supreme Court recently stated[:] “To reverse a
decision, we demand a special justification, over and above the
belief that the precedent was wrongly decided.” Allen v. Cooper,
___ U.S. ___, 140 S. Ct. 994, 1003 . . . (2020) (quotation marks and
citation omitted).
Commonwealth v. Alexander, 243 A.3d 177, 195-96 (Pa. 2020) (emphasis added).
7
Given that the reasonable assurance provisions are meant
to exclude claimant[]s from receiving [UC] benefits
between a scheduled break in the academic year because
they can anticipate those periods of unemployment, the
[UCBR] concludes that [Section 402.1](5) [of the Law]
provides for [UC] benefits to those who do not commence
employment with the employer when expected after a
scheduled break in the academic school year due to
circumstances beyond their control. Therefore, because
[] [C]laimant was expected to begin his employment again
on August 31, 2020, following the summer recess, but was
furloughed from August 31, 2020[] through September 28,
2020, the [UCBR] concludes [] [C]laimant is eligible for
[UC] benefits for the weeks at issue under Section
402.1(5) [of the Law].
R.R. at 109a (UCBR Dec. at 3) (emphasis added).7 It is undisputed that Claimant is
entitled to UC benefits for the period he was furloughed, i.e., August 31, 2020
through September 28, 2020. The issue before this Court is whether, under Section
402.1(5) of the Law, Claimant qualifies for UC benefits beginning with the week
ending June 20, 2020, the same period for which he was denied UC benefits under
Section 402.1(2) of the Law.
The Pennsylvania Supreme Court has instructed:
The object of all statutory interpretation is to
ascertain and effectuate the intention of the
General Assembly, giving effect, if possible, to all
provisions of the statute. In general, the best
indication of legislative intent is the plain language
of a statute.
7
The Dissent states that because neither this Court nor the Pennsylvania Supreme Court
has interpreted the meaning of Section 402.1(5) of the Law, this Court must view the UCBR’s
interpretation of the Law with strong deference. However, our Supreme Court has held: “A court
does not defer to an administrative agency’s interpretation of the plain meaning of an unambiguous
statute because statutory interpretation is a question of law for the court.” Crown Castle NG E.
LLC v. Pa. Pub. Util. Comm’n, 234 A.3d 665, 674 (Pa. 2020). Here, as discussed further infra,
the statute is unambiguous.
8
When the words of a statute are clear and free
from all ambiguity, the letter of it is not to be
disregarded under the pretext of pursuing its
spirit. Words of the statute are to be construed
according to their common and approved usage.
Sivick v. State Ethics Comm’n, . . . 238 A.3d 1250, 1259
([Pa.] 2020) (emphasis added) (quoting Kistler v. State
Ethics Comm’n, . . . 22 A.3d 223, 227 ([Pa.] 2011)
(cleaned up)); see generally Sections 1903 and 1921 of the
Statutory Construction Act of 1972, 1 Pa.C.S. §§ 1903,
1921.
Rose Tree I, 280 A.3d at 1129. Further, “[t]his Court has consistently held that
courts may not supply words omitted by the legislature as a means of interpreting
a statute. This Court’s duty to interpret statutes does not include the right to add
words or provisions that the legislature has left out.” Rogele, Inc. v. Workers’ Comp.
Appeal Bd. (Mattson), 969 A.2d 634, 637 (Pa. Cmwlth. 2009) (emphasis added;
citations omitted).
In the instant case, Claimant rejoins:
[T]he [UCBR’s] construction of [Section 402.1(5) of the
Law] as providing retroactive benefits to individuals
given reasonable assurance of a position at the beginning
of the school year but, in fact, do not commence
employment at the beginning of the school year, is
consistent with the plain language of the statute.
Claimant Br. at 7 (emphasis added). However, the words “at the beginning of the
school year” do not appear in Section 402.1(5) of the Law. Claimant Br. at 7.
Rather, Section 402.1(5) of the Law expressly states that such UC benefits will be
paid to “such individual if he is not offered an opportunity to perform such service
in the second of such academic years or terms[.]” 43 P.S. § 802.1(5) (emphasis
added). Further, with respect to reasonable assurance, Section 65.161(a) of the
Department’s Regulations requires that the employer “provide[] a bona fide offer of
employment for the second academic period[,]” and that “[t]he economic terms and
9
conditions of the employment offered to the individual for the second academic
period [must] not [be] substantially less than the terms and conditions of the
individual’s employment in the first academic period.” 34 Pa. Code § 65.161(a).
Section 65.161(c) of the Department’s Regulations expressly provides: “[E]conomic
terms and conditions of employment include wages, benefits[,] and hours of work.”
34 Pa. Code § 65.161(c).
Here, Claimant was “offered an opportunity to perform such service in
the second of such academic years or terms,” 43 P.S. § 802.1(5), and he does not
claim that his “wages, benefits[,] and . . . work” hours offered were less in the second
academic year than the first academic year. 34 Pa. Code § 65.161(c). Thus, the
work Employer offered in the second academic year was not “substantially less than
the terms and conditions of [Claimant’s] employment in the first academic period.”
34 Pa. Code § 65.161(a)(2).
Further, this Court has explained:
[T]he focus of our inquiry is whether the terms and
conditions offered were substantially less at the time the
offer was made, “without the benefit of hindsight.”
Glassmire v. Unemployment Comp[.] [Bd.] of Rev[.], 856
A.2d 269, 274 (Pa. Cmwlth. 2004). The reasonableness of
an employer’s assurance may not be evaluated with the
benefit of hindsight. Lyman v. Unemployment Comp[.]
[Bd.] of Rev[.], . . . 463 A.2d 1270, 1272 ([Pa. Cmwlth.]
1983).
Archie v. Unemployment Comp. Bd. of Rev., 897 A.2d 1, 5 (Pa. Cmwlth. 2006) (bold
emphasis added). Here, Employer’s reasonable assurance letter provided: “Please
consider this notice as an offer to return to your position when school resumes for
the 2020-2021 school year.” R.R. at 74a. Thus, because Employer expected
Claimant to return to work when school resumed, Employer’s assurance was
reasonable at the time it was made. See Archie. Indeed, the UCBR stated: “There
10
is no dispute that in May 2020[,] [] [E]mployer sent [] [C]laimant a letter of
reasonable assurance indicating its intent to employ [] [C]laimant in the same or
similar capacity, and at terms and conditions not substantially less, than he worked
under during the 2019-20 academic school year.” R.R. at 108a (UCBR Dec. at 2).
The UCBR concluded that Section 402.1(5) of the Law provides UC
benefits to those who do not commence employment with the employer “when
expected” after a scheduled break in the academic school year “due to
circumstances beyond their control.” R.R. at 109a (UCBR Dec. at 3) (emphasis
added). Section 402.1(5) of the Law does not contain the words “when expected,”
id., and neither the UCBR nor this Court has the authority to amend the statutory
language. See Rose Tree I; Rogele, Inc. Rather, Section 402.1(5) of the Law
expressly mandates that those “not offered an opportunity to perform such service
in the second of such academic years or terms shall be paid benefits for the period
which commences with the first week he was denied benefits solely by the reason of
[Section 402.1](2) [of the Law.]” 43 P.S. § 802.1(5) (emphasis added).
Consequently, there is no statutory authority for the UCBR’s conclusion.
The UCBR reasoned “that the reasonable assurance provisions are
meant to exclude claimant[]s from receiving [UC] benefits between a scheduled
break in the academic year because they can anticipate those periods of
unemployment.” R.R. at 109a (UCBR Dec. at 3) (emphasis added). However, that
reasoning does not justify providing UC benefits to a claimant for the entire summer
break when a claimant starts employment one month later and is entitled to UC
benefits for said month. The fact that Claimant returned to work a month later “due
to circumstances beyond [his] control,” id., is the reason he is entitled to UC benefits
11
for that period,8 and there is no language in the Law to permit the UCBR or this
Court to escalate the receipt of UC benefits for the entire preceding summer. To
conclude otherwise would add language to the Law which this Court is not permitted
to do, and give Claimant a windfall of more than double the UC benefits to which
he is entitled.
As stated above, Claimant was offered “an opportunity to perform such
service in the second of such academic years[,]” 43 P.S. § 802.1(5), and, in fact, did
work in the 2020-21 academic year, albeit starting a month later than expected.
Consequently, Claimant is not eligible for UC benefits for the week ending June 20,
2020, because Section 402.1(5) of the Law does not apply herein. Accordingly,
Claimant is not entitled to UC benefits for the summer months for which the UCBR
properly found he was disqualified because he received reasonable assurance of
employment under Section 402.1(2) of the Law.9
8
“Pursuant to Section 3 of the Law, the purpose of the Law is to provide UC benefits for
‘persons unemployed through no fault of their own.’ 43 P.S. § 752 (emphasis added).” Spivey
v. Unemployment Comp. Bd. of Rev., 235 A.3d 433, 437 (Pa. Cmwlth. 2020).
9
The Dissent contends that the ESY program is a term for purposes of Section 402.1 of
Law, and because Claimant’s services as a bus driver were not needed in the summer term of 2020
as they had been for the past three consecutive years, Claimant was not offered the opportunity to
perform such service in the second of such academic years or terms, and, thus, he is eligible for
UC benefits under Section 402.1(5) of the Law. However, the Dissent misreads the statute.
Section 402.1(5) of the Law states:
With respect to an individual who performs services described in
clause (2) of this section and who pursuant to clause (2) [(relating to
reasonable assurance)] or (4) of this section is denied benefits for
the period between academic years or terms, such individual if he
is not offered an opportunity to perform such service in the second
of such academic years or terms shall be paid benefits for the
period which commences with the first week he was denied benefits
solely by the reason of clause (2) or (4) of this section, provided he
had filed timely claims for benefits throughout the denial period and
was otherwise eligible for benefits.
12
Conclusion
For all of the above reasons, the portion of the UCBR’s order ruling
that Claimant is disqualified from receiving UC benefits under Section 402.1(2) of
the Law is affirmed, and the portion of the UCBR’s order granting Claimant UC
benefits under Section 402.1(5) of the Law is reversed.
_________________________________
ANNE E. COVEY, Judge
43 P.S. § 802.1(5) (bold and italic emphasis added). Here, pursuant to Section 402.1(2) of the
Law, Claimant was denied UC benefits for the period between academic years, i.e., the summer
break. Therefore, Section 402.1(5) of the Law only applies if Claimant was not offered the
opportunity to perform such service in the second of such academic years. If the Dissent’s
contention was valid, there would be no need for reasonable assurance in the first instance because
there would be no break, i.e., a period between academic years or terms. Thus, whether Claimant
was offered work during the ESY program, which occurred between two academic years, is
irrelevant. Here, as the Dissent acknowledges, Claimant was offered the opportunity to perform
such service in the second of such academic years. Accordingly, Claimant is not eligible for UC
benefits under Section 402.1(5) of the Law.
13
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Rose Tree Media School District, :
Petitioner :
:
v. :
:
Unemployment Compensation :
Board of Review, : No. 366 C.D. 2022
Respondent :
ORDER
AND NOW, this 19th day of May, 2023, the portion of the
Unemployment Compensation (UC) Board of Review’s (UCBR) March 21, 2022
order denying Martin McGee (Claimant) UC benefits under Section 402.1(2) of the
UC Law (Law), 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(2),
is AFFIRMED, and the portion of the UCBR’s order granting Claimant UC benefits
under Section 402.1(5), 43 P.S. § 802.1(5), of the Law is REVERSED.
_________________________________
ANNE E. COVEY, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Rose Tree Media School District, :
Petitioner :
:
v. : No. 366 C.D. 2022
: Argued: March 7, 2023
Unemployment Compensation :
Board of Review, :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
DISSENTING OPINION BY
PRESIDENT JUDGE COHN JUBELIRER FILED: May 19, 2023
Because I continue to disagree with the majority opinion in Rose Tree Media
School District v. Unemployment Compensation Board of Review, 280 A.3d 1125,
1131 (Pa. Cmwlth. 2022) (Rose Tree I) and believe the Unemployment
Compensation (UC) Board of Review’s (Board) interpretation of Section 402.1(5)
of the UC Law (Law)1 herein is consistent with the plain language of the Law,
respectfully, I would affirm that portion of the Board’s Order granting Martin
McGee (Claimant) UC benefits beginning with the week ending June 20, 2020, and,
therefore, must dissent to the thoughtful Majority Opinion.
Section 402.1(2) and (5) of the Law states, in pertinent part:
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(5).
Benefits based on service for educational institutions . . . shall as
hereinafter provided be payable . . . ; except that:
....
(2) With respect to services performed after October 31, 1983, in any
other capacity for an educational institution,[2] benefits shall not be paid
on the basis of such services to any individual for any week which
commences during a period between two successive academic years or
terms if such individual performs such services in the first of such
academic years or terms and there is a reasonable assurance that such
individual will perform such services in the second of such academic
years or terms.
....
(5) With respect to an individual who performs services described in
clause (2) of this section and who pursuant to clause (2) or (4) of this
section is denied benefits for the period between academic years or
terms, such individual if he is not offered an opportunity to perform
such service in the second of such academic years or terms shall be paid
benefits for the period which commences with the first week he was
denied benefits solely by the reason of clause (2) or (4) of this section,
provided he had filed timely claims for benefits throughout the denial
period and was otherwise eligible for benefits.
43 P.S. § 802.1(2), (5). The Department of Labor and Industry’s Regulations further
provide, in relevant part:
(a) For purposes of [S]ection 402.1 of the [L]aw (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:
(1) The educational institution or educational service agency
provides a bona fide offer of employment for the second
academic period to the individual.
2
Section 402.1(1) of the Law applies to teachers and administrators; other staff, such as
Claimant, fall under Section 402.1(2).
RCJ-2
(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.
34 Pa. Code § 65.161(a).
Section 402.1(2) applies to non-instructional employees of educational
institutions who work during the academic year where “there is a reasonable
assurance that such individual will perform such services in the second of such
academic years or terms.” 43 P.S. § 802.1(2). The Pennsylvania Supreme Court has
explained that the Legislature’s intent 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 nonworking 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) (citation omitted).
In Rose Tree I, the majority held that because the Extended School Year
(ESY)/summer program “is clearly and undisputedly ‘during a period between two
successive academic years[,]’ 43 P.S. § 802.1(2),” and the claimant, a bus driver like
Claimant here, had “received reasonable assurance that she would return to work the
following school year,” she was “disqualified from receiving UC benefits under
Section 402.1(2) of the Law.” Rose Tree I, 280 A.3d at 1131. Rose Tree I overruled
Department of Education, Scotland School for Veterans’ Children v. Unemployment
Compensation Board of Review, 578 A.2d 78 (Pa. Cmwlth. 1990) (Scotland School),
wherein we had held that evidence of regular summer scheduling for a houseparent
at a residential school supported a finding that she was not an academic year
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employee but, rather, was employed year round, and, thus, she was not within
educational employment exclusion of the Law. Scotland School, 578 A.2d at 81-83.
I joined in the thoughtful dissenting opinion of the Honorable Lori A. Dumas in Rose
Tree I. Therein, Judge Dumas reasoned that in light of the substantial evidence
establishing that the claimant was a year-round employee, which the Board had
accepted, she should not have been disqualified from receiving UC benefits as an
employee otherwise subject to Section 402.1(2) of the Law and should have been
entitled to the exception recognized in Scotland School. Rose Tree I, 280 A.3d at
1131 (Dumas, J., dissenting).
While I continue to disagree with the majority’s holding in Rose Tree I as it
concerned the eligibility for UC benefits under Section 402.1(2) of the Law, that
holding is not dispositive of the interpretation of Section 402.1(5), a different
subsection, in this case. The Board, in this case, found that Rose Tree Media School
District (Employer) typically had provided an ESY “for special education students
and summer school for” students in middle and high school “who did not pass their
classes that year.” (Finding of Fact (FOF) ¶ 6.) The Board also determined that
“[t]he ESY and summer school are not part of the academic school year.” (Id. ¶ 7.)
“[C]laimant worked for [] [E]mployer during the ESY and summer school sessions
in 2014, 2017, 2018, and 2019.” (Id. ¶ 11.) Due to the COVID-19 pandemic,
“[E]mployer did not run its summer school [in 2020], only its ESY, and bus drivers
were not needed because [the ESY] was conducted virtually.” (Id. ¶ 12.)
Although the Board determined Claimant was not employed year round, it
reasoned that Section 402.1(5) of the Law was applicable because Claimant did not
begin working until September 28, 2020, and it held that Section 402.1(5) applies
where a claimant does not “commence employment with the employer when
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expected after a scheduled break in the academic school year due to circumstances
beyond [his] control.” (Board Decision at 3.) The Majority reasons that because
Section 402.1(5) of the Law does not contain the terms “when expected,” but rather
states that those “not offered an opportunity to perform such service in the second
of such academic years or terms shall be paid benefits for the period which
commences with the first week he was denied benefits solely by reason of [Section
402.1](2) [of the Law.],” the Board’s interpretation lacks statutory authority. Rose
Tree Media Sch. Dist. v. Unemployment Comp. Bd. of Rev. (Pa. Cmwlth, No. 366
C.D. 2022, filed May 19, 2023), slip. op. at 10-11 (Rose Tree II) (quoting 43 P.S.
§ 802.1(2), (5)) (alterations in the original, emphasis omitted). The Majority also
finds there is no statutory language in the Law which permits the Board or this Court
to find that Claimant was entitled to UC benefits for the summer preceding the start
of the academic year in 2020. Id. at 11. However, I disagree that to conclude
otherwise would require this Court to add language to the Law and result in “a
windfall of more than double the UC benefits to which” Claimant would otherwise
have been entitled. Id. at 11.
Section 1921(b) of the Statutory Construction Act of 1972 directs that “[w]hen
the words of a statute are clear and free from all ambiguity, the letter of it is not to
be disregarded under the pretext of pursuing its spirit.” 1 Pa.C.S.§ 1921(b). Thus,
“when the terms of a statute are clear and unambiguous, they will be given effect
consistent with their plain and common meaning.” Commonwealth v. Gamby, 283
A.3d 298, 306 (Pa. 2022) (citing 1 Pa.C.S. § 1921(b)). The Pennsylvania Supreme
Court has stated it is a “well-settled principle that the interpretation of a statute by
those charged with its execution is entitled to great deference, and will not be
overturned unless such construction is clearly erroneous.” Est. of Wilson v. State
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Emps. Ret. Bd., 219 A.3d 1141, 1151 (Pa. 2019) (internal quotation marks, brackets,
and citations omitted). Neither this Court nor the Pennsylvania Supreme Court has
interpreted the meaning of Section 402.1(5); thus, we view the Board’s interpretation
of the Law with “strong deference.” McCloskey v. Pa Pub. Util. Comm’n., 219 A.3d
1216, 1223 (Pa. Cmwlth. 2019) (referencing Pa. Hum. Rels. Comm’n v. Uniontown
Area Sch. Dist., 313 A.2d 156 (Pa. 1973) (adopting a “strong deference” standard
for reviewing an agency’s interpretation of a statute it is charged to enforce)).
Upon reviewing the Board’s construction of Section 402.1(5) under the facts
presented herein, I would find that the Board’s interpretation of Section 402.1(5) is
reasonable and consistent with its plain meaning. The Board credited Employer that
Claimant is not a year-round employee but, rather, is an academic year employee to
whom the reasonable assurance provision in Section 402.1(2) applies. Because
Claimant received a reasonable assurance of working in the 2020-21 academic
school year, he would typically be ineligible for benefits under Section 402.1(2).
(Board Decision at 2.) However, in finding Claimant to be eligible for benefits under
the provisions of Section 402.1(5) of the Law, the Board employed the following
reasoning, with which I agree:
Given that the reasonable assurance provisions are meant to exclude
claimant[]s from receiving benefits between a scheduled break in the
academic year because they can anticipate those periods of
unemployment, the Board concludes that subsection (5) provides for
benefits to those who do not commence employment with the employer
when expected after a scheduled break in the academic school year due
to circumstances beyond their control. Therefore, because [] [C]laimant
was expected to begin his employment again on August 31, 2020,
following the summer recess, but was furloughed from August 31, 2020,
through September 28, 2020, the Board concludes [] [C]laimant is
eligible for benefits for the weeks at issue under Section 402.1(5).
(Id. at 3.)
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The “weeks at issue” are those which commenced in June of 2020 and
proceeded through the summer. Claimant was denied benefits for the period
beginning with the week of June 20, 2020, and ending August 31, 2020. This reading
of this section aligns with the remedial nature of the Law which is to allow the
anticipation and planning of one’s financial life. “Pursuant to Section 3 of the Law,
the purpose of the Law is to provide UC benefits for ‘persons unemployed through
no fault of their own.’ 43 P.S. § 752 (emphasis added).” Spivey v. Unemployment
Comp. Bd. of Rev., 235 A.3d 433, 437 (Pa. Cmwlth. 2020).
In light of the deference we give to the Board’s interpretation of the Law, and
because I find its interpretation of Section 402.1(5) is sound, I agree it is applicable
under the facts presented herein, and I respectfully disagree that Claimant is not
eligible for UC benefits for the week ending June 20, 2020. Accordingly, because
the Board’s determination was not erroneous, I would affirm the Board’s holding
that Claimant is entitled to UC benefits beginning with the week ending June 20,
2020, under Section 402.1(5).
I additionally believe Claimant is entitled to benefits under Section 402.1(5)
under an alternative interpretation of the Section. The plain language of both Section
(2) and (5) differentiates between “academic years” and “terms.” 43 P.S. § 802.1(2),
(5). Under the clear language of Section 402.1(5), the reasonable assurance doctrine
is inapplicable where a claimant “is not offered an opportunity to perform” services
in the second of such academic years “or terms.” 43 P.S. § 802.1(5). The
Legislature’s decision to distinguish an “academic year” from a “term” suggests that
the two are not the same for purposes of this Section. In Prunty v. Unemployment
Compensation Board of Review, 253 A.3d 349, 357 (Pa. Cmwlth. 2021), this Court
held that a summer term at the Community College of Philadelphia did not constitute
a “regular term” based on the plain language of Section 402.1(1) of the Law and,
therefore, the claimant, a part-time adjunct faculty member at the postsecondary
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institution, was not entitled to UC benefits when she did not teach during a summer
term either due to a lack of student enrollment or the availability of full-time faculty
to teach. Although this Court did not consider the applicability of Section 402.1(5)
in Prunty, we did not refer to the “academic year” and “summer term”
interchangeably throughout our discussion and stressed that the school’s catalog
expressly differentiated between the “academic year” and the “summer term.” Id. at
358.
Similarly, the plain language of Section 402.1(5) allows for situations where
a school district’s calendar is essentially divided into “terms” i.e., semesters, or as
in the case before us, an academic school year followed by a necessary ESY or
summer school “term” for certain students. Viewed this way, the summer school
term, can be seen as “the second of such academic years or terms” for which
Claimant was denied benefits after the academic year. 43 P.S. § 802.1(5). I agree
with the Majority that Claimant had been offered an opportunity to and did work as
a bus driver in the 2020-21 academic school year. However, as the Board
recognized, Employer sent Claimant a letter of reasonable assurance in May 2020
indicating it intended “to employ [] [C]laimant in the same or similar capacity” as
he had been employed during the 2019-20 academic school year. (Board Decision
at 2.)
During that school year, and the three directly preceding it, Claimant had been
employed as a bus driver for students enrolled in the ESY and summer school
programs. The facts herein establish that the ESY and summer school programs
were typical with Employer and these “terms” were essential extensions of the
academic year for many students. (FOF ¶¶ 6-7.) Claimant’s services as a bus driver
were not needed in the summer term of 2020 as they had been for the past three
consecutive years due to the unavailability of the summer school program and the
placing of the ESY online; therefore, Claimant “was not offered the opportunity to
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perform such service,” 43 P.S. § 802.1(5), i.e. he could not sign up, bid for, and
ultimately start work driving a bus for students in the ESY and summer school
programs, as he traditionally had done because he had not been offered the
opportunity for employment as a bus driver for the ESY and summer school
programs as he had been in 2014, 2017, 2018, and 2019, during the summer 2020–
the second “term” of that school year. Thus, Claimant should be paid benefits for
the period which commences with June 20, 2020, the first week he was denied
benefits following the break (the end of the regular school year) solely by reason of
Section 402.1(2) of the Law. 43 P.S. § 802.1(5).
For the multiple reasons stated above, I would affirm the Board’s decision
and, therefore, I respectfully dissent.
__________________________________________
RENÉE COHN JUBELIRER, President Judge
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