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LINDA M. RETTAN v. COMMONWEALTH PENNSYLVANIA (09/26/74)

decided: September 26, 1974.

LINDA M. RETTAN, APPELLANT,
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, APPELLEE



Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Linda M. Rettan, No. B-72-9-D-126.

COUNSEL

Stephen D. Tompkins, for appellant.

Sydney Reuben, Assistant Attorney General, with him Israel Packel, Attorney General, for appellee.

Judges Wilkinson, Jr., Mencer and Rogers, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 15 Pa. Commw. Page 289]

Linda M. Rettan (Rettan) was employed by Ariel Corporation of Erie, Pennsylvania, for a period of approximately two weeks. She worked as a machine operator and was paid for her services at the rate of $1.65 per hour. Although her work was satisfactory, she was observed by her supervisor to be holding her head very close to the rotating spindle on the machine that she was operating.

The supervisor discussed with Rettan her need for glasses. Rettan acknowledged that she did need them and had worn them in the past as stated in her work application but informed the supervisor that she had lost her glasses and did not have the money to purchase new glasses. Rettan was afforded a few days to find her glasses, but each day she reported to the supervisor that she had been unable to locate them. Thereafter, the supervisor informed Rettan that for safety reasons she could no longer work without glasses, but "as soon as she got her glasses she could come back to work."*fn1

Rettan asserts that she has tried to obtain glasses but that she was informed she would have to pay cash and that she has not been financially able to purchase glasses on a cash basis.

Rettan was allowed unemployment compensation benefits as a result of the referee's determination that her unemployment was not due to her voluntarily leaving work. The Unemployment Compensation Board of Review (Board) reversed the referee and denied benefits because it determined that Rettan's unemployment was due to her "voluntarily leaving work without cause of a necessitous and compelling nature" and therefore

[ 15 Pa. Commw. Page 290]

    she was ineligible for benefits, in accord with the provisions of Section 402(b)(1) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. [1937] 2897, as amended, 43 P.S. ยง 802(b)(1). This appeal followed and we reverse.

Our scope of review in unemployment cases is confined to questions of law and, absent fraud, a determination as to whether the Board's findings are supported by the evidence. Shira v. Unemployment Compensation Board of Review, 10 Pa. Commonwealth Ct. 457, 310 A.2d 708 (1973). We hold that the Board erred as a matter of law in determining on this record that Rettan's unemployment was due to her voluntarily leaving work.*fn2 This question is one of law. See Martinez Unemployment Compensation Case, 186 Pa. Superior Ct. 50, 140 A.2d 351 (1958).

Although it is true that Rettan was given a choice of obtaining glasses and retaining her employment or going without glasses and being unable to work at the Ariel Corporation, we do not conclude on this record that her failure to obtain glasses because of financial inability constituted voluntarily leaving work. There is no evidence of record that Rettan's financial situation was otherwise than that which she asserted. Nor does the record disclose any ...


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