           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Carla M. Boyd,                                  :
                              Petitioner        :
                                                :
               v.                               :   No. 205 C.D. 2018
                                                :   Argued: October 15, 2018
Unemployment Compensation                       :
Board of Review,                                :
                    Respondent                  :



BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE MICHAEL H. WOJCIK, Judge
        HONORABLE CHRISTINE FIZZANO CANNON, Judge



OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE BROBSON                                FILED: November 20, 2018


               Petitioner Carla M. Boyd (Claimant) petitions for review of an order of
the Unemployment Compensation Board of Review (Board). The Board reversed
the Unemployment Compensation Referee’s decision, which awarded Claimant
unemployment compensation benefits. For the reasons set forth below, we now
affirm the Board’s decision.
               Claimant has been employed by the Community College of Allegheny
County (Employer)1 as an Adjunct Professor since 1999. (Certified Record (C.R.),

       1
         Employer intervened in this matter by filing a notice of intervention on March 16, 2018.
The Board subsequently notified this Court that it would not be filing a brief or participating in
oral argument of this matter.
Item No. 11 at 4.) Claimant filed for benefits on January 1, 2017, claiming benefits
for the weeks ending on January 1, 2017, and May 20, 2017. (C.R., Item Nos. 1, 12.)
The Indiana Unemployment Compensation Service Center (Service Center) found
Claimant ineligible for both periods under Section 402.1 of the Unemployment
Compensation Law (Law),2 because Claimant had reasonable assurances of
employment during the next term. (C.R., Item No. 7.) Claimant then appealed from
the Service Center’s decision as it related to the week ending on May 20, 2017, and
a Referee conducted an evidentiary hearing on August 23, 2017. (C.R., Item
Nos. 8, 11.)
               At the evidentiary hearing, Claimant testified that, as of the date of the
hearing, she had last worked for Employer during the 2017 spring term, during
which she taught four computer information technology courses. (Reproduced
Record (R.R.) at 16a.) Those courses started on various dates in January, February,
and March 2017. (Id.) Claimant received $800 per credit hour for those courses,
for a total of $8,200 for the spring term. (Id. at 17a.) Claimant testified she has
taught courses during the summer term. (Id.) Claimant could not recall the number
of summer terms during which she taught, but she testified that it was more than one.
(Id.) She stated that tenured faculty usually teach during the fall and spring terms,
and the opportunity for adjunct instructors prevails in the summer. (Id. at 22a.)
               Claimant testified that on March 1, 2017, Employer offered her the
opportunity to teach three courses during the summer of 2017, and she accepted the
offer. (Id. at 17a.) Ultimately, she did not teach those classes because Employer




       2
         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.

                                              2
cancelled the courses due to low enrollment. (Id.) She testified that Employer has
cancelled courses other times due to low enrollment. (Id. at 18a.)
             According to Claimant, Employer does not distinguish between the
summer term and the fall and spring terms. (Id.) Claimant explained that there is
no difference in terms of work when comparing the fall and spring terms to the
summer term—i.e., the amount of time spent preparing for a course is the same. (Id.)
There is no difference in content or pay, and there is no noticeable decrease in
enrollment. (Id.) Fall courses are ten, fourteen, and sixteen weeks in length, and
summer courses are six, eight, and ten weeks in length. (Id. at 21a-22a.)
             Claimant testified that she attempted to find alternative work for the
summer of 2017 at a different college and searched Employer’s website for other
jobs. (Id. at 19a.) She testified that she relies on full-year employment as opposed
to simply two academic terms. (Id.) She further testified that Employer offered her
the opportunity to teach one, three-credit course in the fall of 2017, for a total of
$2,400. (Id.) Employer pays her on a monthly basis for each term during the term
which she is teaching. (Id. at 21a.) Claimant received a letter (Letter of Reasonable
Assurance) from Employer, dated April 6, 2017, providing her “notice of reasonable
assurance of continued part-time employment for the fall semester.” (Id. at 31a.) It
also noted that “[t]he final fall schedule is subject to enrollment and final course
offerings.” (Id.) Claimant testified that she has received the same or a similar letter
in past terms. (Id. at 24a.)
             Employer presented the testimony of Yvonne Powers, Employer’s
Director of Employee and Labor Relations. (Id. at 14a.) Ms. Powers testified
regarding the Letter of Reasonable Assurance, explaining that it is a standard letter
sent to all of Employer’s faculty members every year. (Id. at 24a.) She also testified


                                          3
that the Letter of Reasonable Assurance serves as a guarantee that faculty members
will receive work from Employer in the future. (Id. at 25a.) Ms. Powers testified
that there is a difference between the regular school schedule and the summer terms3
in that graduation follows the end of the spring term. (Id.) Following graduation,
there is a two- or three-week time period before the summer terms begin, which
Employer refers to as summer recess. (Id. at 24a, 25a.) The summer terms have a
lot of shortened classes. (Id. at 24a.) During the spring and fall semesters, Employer
offers students the courses that the students will need to be on track for graduation.
(Id.) During the summer terms, Employer offers some of the courses required for
graduation but also offers extra classes during this time period. (Id.)
              Claimant’s counsel asked Ms. Powers a series of questions regarding
the course catalog, duration and content of courses, and tuition paid by students
during the various terms, but Ms. Powers did not know the answer to those questions.
She noted that as Director of Employment and Labor Relations, she does not deal
with those matters. (Id. at 27a-29a.) During that questioning, the Referee accepted
Claimant’s counsel’s representation that even though the length of the summer terms
is shorter than the length of the spring and fall terms, the number of hours that a
student would be in a class offered in the summer term is equivalent to the number
of hours a student would be in that same course if it was offered in the fall and spring
terms. (Id. at 28a.) The difference is that a course offered during the fall and spring



       3
          Throughout her testimony, Ms. Powers referred to the periods of instruction following
summer recess and preceding the fall term as summer sessions, but then she later agreed to the
terminology summer term or summer terms. (R.R. at 26a.) She explained that there is a first and
second summer term. (Id.) For purposes of consistency, we will use the phrase summer term(s)
in place of summer session(s) when summarizing Ms. Powers’ testimony.


                                              4
terms may meet for only fifty minutes at a time, whereas a summer course may meet
for over two hours at a time.4 (Id.)
               Ms. Powers further testified that course offerings are based on
enrollment, and Employer may cancel courses based on enrollment. (Id. at 29a.) In
those instances, Employer usually opts to find other courses for an instructor because
Employer has given a reasonable assurance of employment. (Id.)
               After the conclusion of the evidentiary hearing, the Referee issued a
decision reversing the Service Center’s determination, finding Claimant eligible for
unemployment compensation benefits due to lack of reasonable assurance of
continued employment. (C.R., Item No. 12.)
               Employer then appealed to the Board, which reversed the Referee’s
decision and adopted its own findings of fact. (R.R. at 54a.) The Board concluded
that Claimant was ineligible for benefits pursuant to Section 402.1 of the Law. (Id.)
In so doing, the Board issued the following findings of fact:
               1. Since March of 1999, the claimant has been employed
                  as an adjunct professor with Community College of
                  Allegheny [County].
               2. The employer has regular spring and fall academic
                  terms.


       4
          Claimant’s counsel also questioned Ms. Powers as to whether she knew how often
Claimant taught during the summer terms in the past. (R.R. at 29a.) Employer’s representative
raised an objection based on relevance. When pressed for an explanation regarding the reason for
the question, Claimant’s counsel answered that he was “just curious whether or not [Ms. Powers]
is familiar with what adjuncts typically do.” (Id.) The record reveals only a portion of the
Referee’s response, as cross-talk prevented the court reporter from obtaining a transcription of the
response. (Id.) The Referee’s partial response is as follows: “[Claimant] says she’s worked
[s]ummer and she shows you that . . . .” (Id.) Following what the court reporter transcribes as
“cross-talk,” Claimant’s counsel responds “[o]kay, all right, . . . fair enough,” and continues with
a different line of questions. (Id.)


                                                 5
              3. The claimant, on occasion, worked over the summer.
              4. The employer offers summer courses, which are
                 shortened in length, which some are only six[-]week
                 courses that are expedited.
              5. The spring and [fall][5]academic terms are different
                 from the summer session.
              6. In her internet claim form, the claimant admitted she
                 was unemployed due to being on a summer break.
              7. The summer program course that the claimant was
                 selected to teach was cancelled due to low enrollment.
              8. The claimant received reasonable assurance to teach in
                 the Fall of 2017.

(Id.) The Board reasoned:
              In Community College of Allegheny County v.
              Unemployment Compensation Board of Review,
              634 A.2d 845 (Pa. Cmwlth. 1993)[, appeal denied,
              653 A.2d 1234 (Pa. 1994), . . . t]he Court held that:
              Although [the employer] 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. Community
              College, 634 A.2d at 848. Here, following the Court’s
              rationale, the Board similarly concludes, based on the facts
              as found by the Board, that the period in question is not
              part of the regular term. As such, the claimant is ineligible
              for benefits during the summer session.

(Id.) Claimant now petitions this Court for review.



       5
        It appears that the Board inadvertently omitted the word “fall” from finding of fact
number 5.


                                             6
              On appeal,6 Claimant argues that substantial evidence does not exist to
support findings of fact numbers 6 and 8. Claimant’s error of law claims are as
follows: (1) the Board committed an error of law by failing to conclude that
Employer’s summer term is a regular term within the meaning of Section 402.1 of
the Law; (2) the Board committed an error of law by denying benefits because the
period at issue is a regular term and courts have denied benefits only when claimants
seek compensation for a period defined as a summer break—not where the period is
a regular term; and (3) the Board committed an error of law by concluding that
Claimant received reasonable assurance, in spite of the fact that the actual
compensation for teaching in the fall was substantially less than the compensation
earned in the spring. Alternatively, Claimant asserts that she is eligible for benefits
because she was unemployed within the meaning of Section 4(u) of the Law.7
              We will first address Claimant’s substantial evidence arguments.
Substantial evidence is defined as relevant evidence upon which a reasonable mind
could base a conclusion.           Johnson v. Unemployment Comp. Bd. of Review,
502 A.2d 738, 740 (Pa. Cmwlth. 1986). In determining whether there is substantial
evidence to support the Board’s findings, this Court must examine the testimony in


       6
         This Court’s standard of review is limited to determining whether constitutional rights
were violated, whether an error of law was committed, or whether necessary findings of fact are
supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S.
§ 704.
       7
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 753(4)(u). Section 4(u) of the Law, in pertinent part, defines “unemployed,” as:
       An individual shall be deemed unemployed (I) with respect to any week (i) during
       which he performs no services for which remuneration is paid or payable to him
       and (ii) with respect to which no remuneration is paid or payable to him, or (II) with
       respect to any week of less than his full-time work if the remuneration paid or
       payable to him with respect to such week is less than his weekly benefit rate plus
       his partial benefit credit.
                                                 7
the light most favorable to the prevailing party, giving that party the benefit of any
inferences that can logically and reasonably be drawn from the evidence. Id. A
determination as to whether substantial evidence exists to support a finding of fact
can only be made upon examination of the record as a whole.                 Taylor v.
Unemployment Comp. Bd. of Review, 378 A.2d 829, 831 (Pa. 1977). The Board’s
findings of fact are conclusive on appeal only so long as the record, taken as a whole,
contains substantial evidence to support them.            Penflex, Inc. v. Bryson,
485 A.2d 359, 365 (Pa. 1984). “The fact that [a party] may have produced witnesses
who gave a different version of the events, or that [the party] might view the
testimony differently than the Board is not grounds for reversal if substantial
evidence supports the Board’s findings.” Tapco Inc. v. Unemployment Comp. Bd.
of Review, 650 A.2d 1106, 1108-09 (Pa. Cmwlth. 1994). Similarly, even if evidence
exists in the record that could support a contrary conclusion, it does not follow that
the findings of fact are not supported by substantial evidence.            Johnson v.
Unemployment Comp. Bd. of Review, 504 A.2d 989, 990 (Pa. Cmwlth. 1986).
             Claimant argues that substantial evidence does not exist to support
finding of fact number 6: “In her internet claim form, the claimant admitted she was
unemployed due to being on a summer break.” (R.R. at 54a.) The Referee admitted
Claimant’s internet claim form into the record during the hearing. (Id. at 15a.)
Claimant indicated on the form that she was unemployed due to “summer recess.”
(C.R., Item No. 2 at 4.) We see no distinction between the term “break” and “recess”
for this finding. Thus, substantial evidence exists via Claimant’s internet claim form
to support the Board’s finding that Claimant characterized her unemployment as
being due to a summer break or recess. Claimant, in her brief, seems to challenge
this finding because she believed that it characterized the summer “term” as a


                                          8
“break.” To the contrary, the Board simply re-stated Claimant’s response on the
internet claim form. The finding did not label the summer term as a type of break
or recess.     Rather, it merely reflects Claimant’s characterization of her
unemployment as being due to a summer break or recess.
             Claimant’s next argument also fails. Substantial evidence exists to
support the Board’s finding that Claimant received reasonable assurance to teach in
the fall term of 2017. Claimant received a letter from Employer in April of 2017 that
provided “notice of reasonable assurance of continued part-time employment for the
fall semester.” (R.R. at 31a.) Claimant testified that in past years she received the
same or substantially similar letter. (Id. at 24a.) Further, Employer’s witness
testified that the letter provided reasonable assurance of employment in the 2017 fall
term and was a standard letter Employer sent every year. (Id. at 25a.) The record,
therefore, supports a finding that Claimant received reasonable assurance of
continued employment in the fall term. Claimant challenges no other findings in her
brief, and therefore, the Board’s other findings are binding on appeal. Munski v.
Unemployment Comp. Bd. of Review, 29 A.3d 133, 136 (Pa. Cmwlth. 2011).
             We will now address Claimant’s error of law claims. Whether an
instructional, research, or principal administrative employee of an educational
institution is eligible for unemployment compensation benefits is governed by
Section 402.1 of the Law. Glassmire v. Unemployment Comp. Bd. of Review,
856 A.2d 269, 273 (Pa. Cmwlth. 2004). Section 402.1 of the Law provides that such
employees are not eligible in the following instance:
             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,
                                          9
            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.

(Emphasis added.) Stated another way, teachers who are not employed during a
recess between two terms, who have been provided with a reasonable assurance of
continued employment with the school for the term following the break, are
ineligible for benefits.      See Archie v. Unemployment Comp. Bd. of
Review, 897 A.2d 1 (Pa. Cmwlth. 2006); Katz v. Unemployment Comp. Bd. of
Review, 540 A.2d 624 (Pa. Cmwlth. 1988); DeLuca v. Unemployment Comp. Bd. of
Review, 459 A.2d 62 (Pa. Cmwlth. 1983). Section 402.1 of the Law recognizes that
breaks are scheduled in the academic term, and, accordingly, “employees are not
truly unemployed or suffering from economic insecurity during scheduled recesses.”
Haynes v. Unemployment Comp. Bd. of Review, 442 A.2d 1232, 1233 (Pa.
Cmwlth. 1982).    Where reasonable assurance is concerned, the Board must
determine whether reasonable assurance was given to the claimant “based on an
examination of all the relevant facts.” Glassmire, 856 A.2d at 273. The employer
need not give an absolute guarantee of employment for the second academic term.
Archie, 897 A.2d at 4. Rather, an employer provides reasonable assurance that the
employee will perform services in the second academic term when:
            (1) The educational institution or educational service
            agency provides a bona fide offer of employment for the
            second academic period to the individual; [and]
            (2) The economic terms and conditions of the employment
            offered to the individual for the second academic period

                                        10
            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).
              First, Claimant asserts that the Board 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 Community College of Allegheny
County, 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. Cmty. Coll. of Allegheny Cty., 643 A.2d at 847. The Court did not deem
summer term to be a regular term because the courses offered in the summer had
lower enrollment, were shorter in duration, and were limited in number. Id. Here,
the Board found that the summer courses offered at Employer’s campus were shorter
in duration. (R.R. at 54a; Finding of Fact (F.F.) No. 4.) The Board also found that
the spring and fall terms are different from the summer session. (Id.; F.F. No. 5.)
Further, it found that the summer program course Claimant was selected to teach
was cancelled due to low enrollment. (Id. at 7.) Here, just as in Community College
of Allegheny County, the Board found that: (1) the offered summer courses are
shorter in duration; (2) there is some evidence that at least one class has 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.8
              Claimant’s next argument relies on a finding that Employer’s summer
term is a regular term. More specifically, Claimant argues that Section 402.1 of the


       8
        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.

                                              11
Law has only been applied to deny benefits to claimants who seek compensation
during a summer break and not during a summer term. Thus, Claimant argues that,
should we agree that the period at issue here is not a summer break, Claimant should
be awarded benefits. As we discussed above, however, we conclude that the summer
term is not a regular term, thereby disposing of this argument as well.
             Claimant further asserts that the Board erred in concluding that she
received reasonable assurance of continued employment because the economic
terms and conditions of the Letter of Reasonable Assurance were substantially less
than what was offered previously. The basis of her argument is that she was actually
scheduled to teach one class in the fall, whereas in the spring she taught three classes,
leaving her with less actual compensation than she previously received. The crux of
this Court’s inquiry, however, is “whether the terms and conditions offered were
substantially less at the time the offer was made, ‘without the benefit of hindsight.’”
Archie, 897 A.2d at 5 (emphasis in original). In Archie, the claimant was an adjunct
professor for an educational institution, where she taught two courses each fall and
spring term. Id. at 2. The employer notified the claimant that she was to return for
the fall term to teach the same two courses, subject to sufficient enrollment. Id.
Based on the conditional language in the letter, the claimant applied for benefits at
the end of the spring term but was denied. Id. On appeal, this Court held that the
letter that offered continued employment with the university constituted reasonable
assurance. Id. at 5. Due to the fact that the letter did not contain economic terms of
employment, this Court inferred that the economic terms of employment as offered
were unchanged. Id. at 4. This Court also found the fact that the claimant actually
received fewer courses for the fall term than she received for the spring term to be
irrelevant to the question of whether the claimant was offered reasonable assurance.


                                           12
Id. This situation is different from one in which the claimant is not offered the same
employment arrangement as the previous term. See, e.g., Slippery Rock Area Sch.
Dist. v. Unemployment Comp. Bd. of Review, 983 A.2d 1231 (Pa. 2009).
             In Slippery Rock Area School District, the claimant worked as a
long-term substitute teacher, where she earned over $23,000 per year, and was
allowed ten sick days per year. Id. at 1234. Before the fall term began, the school
district informed the claimant that she would no longer be a long-term substitute but
would be placed on a list of day-to-day substitutes. Id. at 1235. The new position
did not guarantee daily employment or any employment whatsoever. Id. The
claimant’s rate of compensation was also reduced from $126.34 per day to $80 per
day worked. Id. Further, the claimant had no paid sick days under the new position.
Id. The Supreme Court, therefore, concluded that the claimant did not receive
reasonable assurance of continued employment in the next term and was eligible for
benefits. Id. at 1244. In coming to its holding, the Supreme Court recognized the
maxim from this Court, which considers scheduled recesses to be periods in which
employees are not truly unemployed. Id. The situation in Slippery Rock, however,
caused the rationale behind this maxim to break down because the decrease in
income was caused by the claimant’s employer’s decision to offer her a new position
with fewer hours, compensation, and benefits. Id. The claimant’s position under
that set of facts effectively disappeared. Id.
             Here, Employer offered Claimant reasonable assurance of part-time
employment in the fall, subject to enrollment levels in the courses. Claimant
testified that she received a similar Letter of Reasonable Assurance in prior terms.
Employer’s witness also testified that the Letter of Reasonable Assurance was a form
or standard letter sent each term. Just as in Archie, the letter did not offer wages, did


                                           13
not specify which classes were to be taught, and did not even guarantee that a certain
number of classes would be taught by Claimant. Pursuant to Archie, the terms
offered are, therefore, inferred to be the same as the economic terms from previous
terms. Further, this situation is not reminiscent of the facts in Slippery Rock. In the
case now before this Court, Employer offered Claimant a position as an adjunct
professor. There was, therefore, no change in her job description or duties. The
terms offered are the same as those offered previously, and Employer offered
Claimant the same job she has held since 1999. The Board, therefore, did not
commit an error of law by concluding that Claimant received reasonable assurance
of continued employment in the fall.
             Finally, relying on this Court’s decision in Zielinski v. Unemployment
Compensation Board of Review, 834 A.2d 1225 (Pa. Cmwlth. 2003), Claimant
argues that even if she is not entitled to benefits under the above analysis, she is
entitled to benefits because she was unemployed within the meaning of
Section 4(u) of the Law when she received only one course to teach for the fall term.
Under Pennsylvania Rule of Appellate Procedure 1551, “[n]o question shall be heard
by the court which was not raised before the government unit.” This is the first time
that Claimant has raised this argument, and, therefore, it is waived. The record is
devoid of any mention of a claim for benefits based on unemployment during the
fall term. In fact, counsel for Claimant clarified in the beginning of the hearing
before the Referee that the only claim being made was for benefits for the week
ending on May 20, 2017. (C.R., Item No. 11 at 3.) Claimant, therefore, has waived
this issue, and this Court cannot determine the merits of the argument.
             For these reasons, the Board did not err in concluding that Claimant is
ineligible for benefits for the period between two regular terms, where she has


                                          14
received reasonable assurance of continued employment. Accordingly, we affirm
the Board’s order denying Claimant benefits pursuant to Section 402.1 of the Law.




                                        P. KEVIN BROBSON, Judge




                                       15
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Carla M. Boyd,                      :
                     Petitioner     :
                                    :
           v.                       :   No. 205 C.D. 2018
                                    :
Unemployment Compensation           :
Board of Review,                    :
                    Respondent      :


                                  ORDER


           AND NOW, this 20th day of November, 2018, the order of the
Unemployment Compensation Board of Review is hereby AFFIRMED.




                                    P. KEVIN BROBSON, Judge
