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UNEMPLOYMENT COMPENSATION BOARD REVIEW COMMONWEALTH PENNSYLVANIA v. JAMES J. KAPSCH (04/22/75)

decided: April 22, 1975.

UNEMPLOYMENT COMPENSATION BOARD OF REVIEW OF THE COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
JAMES J. KAPSCH, APPELLANT



Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of James J. Kapsch, No. B-122101.

COUNSEL

John R. Anderson, for appellant.

Charles G. Hasson, Assistant Attorney General, with him Sydney Reuben, Assistant Attorney General, and Robert P. Kane, Attorney General, for appellee.

Judges Crumlish, Jr., Kramer and Rogers, sitting as a panel of three. Opinion by Judge Kramer.

Author: Kramer

[ 18 Pa. Commw. Page 457]

This is an appeal by James T. Kapsch (Kapsch) from an order of the Unemployment Compensation Board of Review (Board), dated June 18, 1974, which affirmed a referee's denial of unemployment compensation benefits.

[ 18 Pa. Commw. Page 458]

The only issue raised by this appeal is whether the referee's finding that "[c]ontinuing work was available to the claimant if he had desired to remain employed" is supported by substantial competent evidence. Our power to review on this basis is clear. Rabinowitz v. Commonwealth of Pennsylvania, Unemployment Compensation Board of Review, 15 Pa. Commonwealth Ct. 51, 324 A.2d 825 (1974).

The essential facts may be succinctly stated. Kapsch was employed as a warehouseman by the Mahla Office Equipment Company (Mahla). Some time in early 1973 Kapsch developed a physical disability, later diagnosed as a hernia, which he alleges precluded him from performing his job with Mahla. On June 8, 1973, Kapsch voluntarily terminated his employment with Mahla, without giving his employer any medical certification of his disability, and without requesting a medical leave of absence.

Kapsch's application for benefits was denied by the Bureau of Employment Security on the basis of section 402(b)(1) of the Unemployment Compensation Law (Act), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, 43 P.S. ยง 802(b)(1), which reads, in relevant part:

"An employe shall be ineligible for compensation for any week --

"(b)(1) In which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature. . . ."

Health problems may establish a "necessitous and compelling" cause for terminating an employment relationship, but the inquiry does not end there. Tollari v. Commonwealth of Pennsylvania, Unemployment Compensation Board of Review, 10 Pa. Commonwealth Ct. 589, 309 A.2d 833 (1973). Under Tollari, before he may be eligible for ...


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