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ANGELO TOLLARI AND RICHARD SCHILLING AND MICHAEL SENKO v. COMMONWEALTH PENNSYLVANIA (10/10/73)

decided: October 10, 1973.

ANGELO TOLLARI AND RICHARD SCHILLING AND MICHAEL SENKO, JR. AND JOHN ZOLAK AND JESSE FILLINGHAM AND PAUL REYNOLDS, APPELLANTS,
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, APPELLEE, AND WHEELING-PITTSBURGH STEEL CORPORATION, INTERVENING APPELLEE



Appeals from the Orders of the Unemployment Compensation Board of Review in cases of In Re: Claim of Angelo Tollari, No. B-113463; In Re: Claim of Richard Schilling, No. B-114425; In Re: Claim of Michael Senko, Jr., No. B-114426; In Re: Claim of John Zolak, No. B-114427; In Re: Claim of Jesse Fillingham, No. B-114428; and In Re: Claim of Paul Reynolds, No. B-114429.

COUNSEL

William R. Caroselli, with him McArdle, Henderson, Caroselli, Laffey & Beachler, for appellants.

Sydney Reuben, Assistant Attorney General, for appellee.

Leonard L. Scheinholtz, with him Eugene K. Conners and Reed, Smith, Shaw & McClay, for intervening appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Mencer, Rogers and Blatt. Judge Wilkinson, Jr., did not participate. Opinion by Judge Blatt.

Author: Blatt

[ 10 Pa. Commw. Page 591]

All of the claimants herein are retired employees of the Wheeling-Pittsburgh Steel Corporation (employer) and are seeking unemployment compensation benefits. The claims are based on the ground that, although the retirements were voluntary, they were occasioned by causes of a necessitous and compelling nature, and so entitle the claimants to benefits. Even though the claimants retired at various times, the fact situation in each case is virtually identical, and all cases, therefore, will be considered together. Each claimant contends that he retired, not because of any requirement by the employer, but because he was physically unable to continue with his job.

The claimants' applications for unemployment compensation were denied by the Bureau of Employment Security, this denial was in turn affirmed by a referee and by the Unemployment Compensation Board of Review (Board), and appeals from the Board's action have now been filed with this Court. In each case, the Board's denial of benefits was based on the argument that the claimant had voluntarily terminated his employment without cause of a necessitous and compelling nature, and was thus ineligible for compensation benefits under Section 402(b)(1) of the Unemployment Compensation Law, Act of Dec. 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b)(1).

[ 10 Pa. Commw. Page 592]

When, as here, an individual, who has become unemployed by reason of a voluntary termination of his work, applies for unemployment compensation benefits, he assumes the burden of showing that such termination was with cause of a necessitous and compelling nature. Kernisky v. Unemployment Compensation Board of Review, 10 Pa. Commonwealth Ct. 199, 309 A.2d 181 (1973); Pfafman v. Unemployment Compensation Page 592} Board of Review, 7 Pa. Commonwealth Ct. 197, 300 A.2d 295 (1973). It has been held, too, that a voluntary retirement generally constitutes a voluntary leaving of work without cause of a necessitous and compelling nature. Walker Unemployment Compensation Case, 202 Pa. Superior Ct. 231, 195 A.2d 858 (1963); Greenaway Unemployment Compensation Case, 201 Pa. Superior Ct. 80, 191 A.2d 710 (1963). It is also true, however, that the "illness of a claimant may constitute a valid personal reason and good cause for leaving his employment within the meaning of Section 402(b) of the Unemployment Compensation Law." McComb Unemployment Compensation Case, 179 Pa. Superior Ct. 424, 426, 116 A.2d 92, 93 (1955).

It seems clear that work which an individual is not capable of performing, because of disease or injury, might not constitute "suitable work" as defined in Section 4(t) of The Unemployment Compensation Act, 43 P.S. § 753(t), and so might justify his leaving employment, but he will not be eligible for unemployment compensation benefits unless he has sought lighter work prior to his leaving. Fischer Unemployment Compensation Case, 199 Pa. Superior Ct. 628, 186 A.2d 421 (1962); Zelek Unemployment Compensation Case, 194 Pa. Superior Ct. 228, 166 A.2d 110 (1960). Our Superior Court has said: "When claimant therefore was advised by his physician that he still could do light work although unable to return to his former job it was his duty to apply to his employer for the kind of work that he could do; and he was not justified in assuming that light work in fact was not available. When he failed to notify his employer that he was available for light work he in effect left his employment voluntarily and is not entitled to benefits." Fennessy Unemployment Compensation Case, 184 Pa. Superior Ct. 492, 494, 135 A.2d 814, 815 (1957). Clearly, a request for lighter

[ 10 Pa. Commw. Page 593]

    work is necessary to help establish that the employee concerned is not totally disabled but is in fact available for work lighter than that which he has been performing. Otherwise he would not be eligible for benefits because he would not be "able to work and available for suitable work. . . ." as ...


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