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NIEBAUER UNEMPLOYMENT COMPENSATION CASE. KUGLER ET AL. v. UNEMPLOYMENT COMPENSATION BOARD REVIEW. (03/24/55)

March 24, 1955

NIEBAUER UNEMPLOYMENT COMPENSATION CASE. KUGLER ET AL., APPELLANTS,
v.
UNEMPLOYMENT COMPENSATION BOARD OF REVIEW.



Appeal, No. 255, April T., 1954, by employers, from decision of Unemployment Compensation Board of Review, dated August 27, 1954, appeal No. B-4-L-828, decision No. B-37400, in re claim of Minnie Niebauer. Decision affirmed.

COUNSEL

Louis Vaira submitted a brief for appellants.

William L. Hammond, Special Deputy Attorney General, with him Frank F. Truscott, Attorney General, for appellee.

Before Rhodes, P. J., Hirt, Ross, Gunther, Wright, Woodside and Ervin, JJ.

Author: Ross

[ 177 Pa. Super. Page 551]

OPINION BY ROSS, J.,

This is an unemployment compensation case in which an employer has appealed from a decision awarding benefits to an employe.

The claimant, Minnie Niebauer, was last employed by Martha O. Kugler and Helen Patsko, trading as Pert 'N' Pretty Beauty Salon, as a beautician, her last day of work being April 17, 1954 when she was discharged. The relevant finding of fact is as follows: "2. The claimant was dismissed by the owner when they were informed that she was approximately 6 weeks pregnant. Claimant's duties in her employment were of a light nature. Claimant at the time of dismissal was physically capable of performing her usual duties."

Martha Kugler testified that the sole reason for discharging the claimant was her pregnancy and that she and her partner "didn't want anything to happen to her" and added, "If she slipped and fell, that wouldn't be good." The claimant testified that her pregnancy did not affect her work, that she opened up the shop every morning, was at the shop every day, took care of her customers the same as she did before her pregnancy and was "never sick". Since the material finding of fact is supported by substantial competent evidence, it is conclusive. Unemployment Compensation Law, § 510, 43 PS § 830.

Section 401 of the Unemployment Compensation Law, as amended by the Act of August 24, 1953, P.L. 1397, § 3, 43 PS § 801, provides in part: "Compensation shall be payable to any employe who is or becomes unemployed, and who... (d) Is able to work

[ 177 Pa. Super. Page 552]

    and available for suitable work: Provided, That a claimant shall be conclusively presumed to be unavailable for work with respect to any week of unemployment attributable to pregnancy..." (Emphasis supplied.) The question before us is whether the claimant's unemployment is "attributable to pregnancy" and we are agreed that it is not.

If the Legislature had intended to make pregnancy per se a disqualification for benefits, it would undoubtedly have said so in explicit language. However, it did not, and in view of the purpose of the Act to relieve the rigors of involuntary unemployment, the only logical construction to be placed upon "attributable to pregnancy" is that if pregnancy affected the work or health of an employe and ...


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