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DAVID HUTT v. UNEMPLOYMENT COMPENSATION BOARD REVIEW COMMONWEALTH PENNSYLVANIA. DAVID HUTT (12/31/76)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: December 31, 1976.

DAVID HUTT
v.
UNEMPLOYMENT COMPENSATION BOARD OF REVIEW OF THE COMMONWEALTH OF PENNSYLVANIA. DAVID HUTT, APPELLANT

Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of David Hutt, No. B-129335.

COUNSEL

Franchot Golub, with him Louis Silverman, for appellant.

Sandra S. Christianson, Assistant Attorney General, with her Sydney Reuben, Assistant Attorney General, and Robert P. Kane, Attorney General, for appellee.

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

Author: Blatt

[ 28 Pa. Commw. Page 58]

David Hutt (claimant) has appealed from an order of the Unemployment Compensation Board of Review (Board) denying him unemployment compensation benefits*fn1 pursuant to Section 402(b)(1) of the Unemployment Compensation Law*fn2 (Law), 43 P.S. ยง 802(b)(1) which provides that an employe shall be ineligible for compensation for any week "[i]n which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature. . . ."

The sole issue here is whether or not Hutt voluntarily left his employment. The record shows that he

[ 28 Pa. Commw. Page 59]

    last worked on Monday, January 20, 1975 and that he visited a hospital on Tuesday, January 21, 1975. He testified that his wife informed his employer on the day of his hospital visit (Tuesday) that he was absent from work because of illness,*fn3 and he also testified that he did not contact his employer again until Friday afternoon, January 24, 1975, at which time the Board found that "the employer notified the claimant that he had quit, and with these words the employer-employee relationship was ended."*fn4

When an employee is absent from work without permission, such absenteeism may constitute just cause for his dismissal, but it does not constitute "voluntarily leaving work" under Section 402(b)(1) of the Law. Haseleu v. Unemployment Compensation Board of Review, 12 Pa. Commonwealth Ct. 96, 316 A.2d 159 (1974); Morgan v. Unemployment Compensation Board of Review, 174 Pa. Superior Ct. 59, 98 A.2d 405 (1953).*fn5 The phrase "voluntarily leaving work" in Section 402(b)(1) means that

[ 28 Pa. Commw. Page 60]

    he left of his own motion; he was not discharged. It is the opposite of a discharge, dismissal or layoff by the employer or other action by the employer severing relations with his employes. . . . (Emphasis added.)

Labor and Industry Department v. Unemployment Compensation Board of Review, 133 Pa. Superior Ct. 518, 521, 3 A.2d 211, 213 (1938).

It is true, however, that "[a]bsence from work, even for a good cause such as illness may become, through the lapse of an unreasonable amount of time, a voluntary termination." Unemployment Compensation Board of Review v. Thomas, 24 Pa. Commonwealth Ct. 136, 139, 354 A.2d 46, 47 (1976).

The question of whether or not a termination of employment was voluntary is a question of law, of course, and is within our scope of review. Rettan v. Unemployment Compensation Board of Review, 15 Pa. Commonwealth Ct. 287, 325 A.2d 646 (1974). We do not believe that an unreasonable amount of time elapsed in this case and the only action taken here regarding the termination of the claimant's employment was taken by the employer. We believe, therefore, that the Board committed an error of law by disqualifying the claimant from unemployment compensation benefits under Section 402(b)(1). We, therefore, reverse the order of the Board and remand this matter to the Board for a computation of benefits.

Order

And Now, this 31st day of December, 1976, the order of the Unemployment Compensation Board, dated January 5, 1976, is reversed and this matter is remanded to the Board for a computation of benefits.

Disposition

Reversed and remanded.


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