decided: February 14, 1977.
UNEMPLOYMENT COMPENSATION BOARD OF REVIEW OF THE COMMONWEALTH OF PENNSYLVANIA
JOYCE E. METZGER, APPELLANT
Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Joyce E. Metzger, No. B-129482.
Matthew D. Carrafiello, for appellant.
Charles G. Hasson, Assistant Attorney General, with him Sydney Reuben, Assistant Attorney General, and Robert P. Kane, Attorney General, for appellee.
President Judge Bowman and Judges Crumlish, Jr., and Wilkinson, Jr., sitting as a panel of three. Opinion by Judge Crumlish, Jr.
[ 28 Pa. Commw. Page 572]
Joyce E. Metzger (Claimant) was last employed as an administrative assistant by Kent-Harris Corporation (Kent), Bala Cynwyd, Pennsylvania, at $175.00 per week for a period of twenty (20) months. Her last day of work occurred on April 30, 1975. Claimant filed an application for unemployment benefits on June 15, 1975.
[ 28 Pa. Commw. Page 573]
After working on April 30, 1975, Claimant left for a vacation in Iran and was expected to be back at work on Tuesday, May 27, 1975. Prior to leaving, Claimant asked if she might extend her vacation but Kent indicated this was impossible. While overseas, Claimant became ill and underwent treatment by an Iranian physician from May 23, 1975 until June 9, 1975 for pneumonia. Claimant requested that a traveling companion cable her sister in the United States with the information that she would not be leaving Iran on the day expected and that her sister (Mrs. Margaret Coyle) was to advise Kent of this. It is undisputed by both Kent and Mrs. Coyle that such call was made, although both parties are vague as to the exact time. Kent claims that the call from Claimant's sister made no mention of either illness or an expected return date. Claimant's witness, Mrs. Coyle, testified that she detailed the nature of Claimant's disability to Kent and the uncertainty of her return date. On or about Thursday, May 29, 1975, Steven Berger, of Kent, telephoned Claimant's mother and inquired about Claimant's return. When Mrs. Anna Metzger could not give him any definite word, he indicated that he would be required to replace Claimant with another employe. Claimant returned to the United States on June 10, 1975, and upon her return, Claimant called Kent and inquired about her unemployment compensation benefits. Mr. Berger testified that he had hired temporary help from an employment service during the weeks ending June 6, June 13 and June 20, 1975, and did not replace Claimant until June 20, 1975.
The Bureau of Employment Security (Bureau) determined Claimant to be ineligible for benefits under Section 402(b)(1) of the Unemployment Compensation Law, Act of December 5, 1936, P.L. (1937) 2897,
[ 28 Pa. Commw. Page 574]
week . . . during that week I called her mother and said anything from Joyce yet and she said no, she doesn't know when she is returning or what. I said it has been . . . you know, we have been without a secretary for almost a month now . . . it was a month. We have no alternative but to hire another secretary if she is not coming back. So her mother says fine. That was the extent of it. There was nothing ever said about her being sick or anything similar to that.
"Q. When was she to report (phonetic)?
"A. It wasn't until . . . in here . . . June 20th. In fact she worked for us for a year and eight months. We give her a three weeks paid vacation and I think (inaudible) that we didn't intend to fire her and that our terms were good when she left and if she would have returned she would have had a job."
Both the testimony of Claimant, and that of her sister, directly contradicted the statement that the employer was not informed of the reason for Claimant's late return and Claimant argues that on this basis there is evidence supportive of the fact that Claimant did have a cause of a necessitous and compelling nature for her failure to return. Claimant argues that it was quite reasonable for Claimant to inform her employer of the illness via a third party given her inability to inform him directly. Yet, the referee found as a fact that the third party communication did not specify illness as the reason for not returning to work, and we are in no position to change such a determination given the employer's testimony supporting that finding.
We agree with the referee's characterization of this factual matrix to the extent that Claimant's failure to sufficiently contact her employer following the expiration of her leave of absence to inform him as to when and if she was returning to work, amounted to an
[ 28 Pa. Commw. Page 576]
abandonment of the employment relationship resulting in her being replaced at the job. Her failure to take the necessary minimal steps to preserve the employment relationship necessitates the affirming of the disallowance of benefits. That a contrary result could have been reached by the referee on the present state of facts is most evident; however, the fact-finder chose to find more credible that evidence tending to establish an unexplained reason for abandonment of the employment relationship. Given this credibility determination, this Court must
And Now, this 14th day of February, 1977, the order of the Unemployment Compensation Board of Review is hereby affirmed.
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