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TOSCA AFFINITO v. UNEMPLOYMENT COMPENSATION BOARD REVIEW COMMONWEALTH PENNSYLVANIA (04/11/77)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: April 11, 1977.

TOSCA AFFINITO, APPELLANT
v.
UNEMPLOYMENT COMPENSATION BOARD OF REVIEW OF THE COMMONWEALTH OF PENNSYLVANIA

Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Tosca Affinito, No. B-131362.

COUNSEL

Thomas B. Kostolansky, for appellant.

George O. Phillips, Assistant Attorney General, with him Robert P. Kane, Attorney General, for appellee.

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

Author: Crumlish

[ 29 Pa. Commw. Page 521]

Claimant, Tosca Affinito, was last employed by Domora Sportswear as a coat turner until February 18, 1975, her last day of work. Due to an injury which prevented Claimant from lifting, she did not report to work on February 19 and remained absent until July 16, 1975. Claimant did not report her status of recovery to the employer, but rather felt it necessary to report to her union the progress of her rehabilitation. Upon her return to work on July 16, she learned that she had been dropped from the employment rolls.

[ 29 Pa. Commw. Page 522]

The referee found as fact that company policy requires employees on sick leave to present a doctor's certificate once a month during the extended period of leave and that Claimant was, in fact, aware of the policy but failed to conform to it.

On the basis of the foregoing, the referee denied benefits pursuant to Section 402(b)(1) of the Unemployment Compensation Law,*fn1 and the Unemployment Compensation Board of Review affirmed the denial. Hence, this appeal.

The thrust of the Board's argument in support of its holding, with which we concur, is that by failing to follow the company policy of informing the company of the progress and condition of an employee on sick leave, Claimant failed to take even the minimal steps necessary to maintain the employment relationship. This is especially true when an employee is aware of the method by which she can maintain the viability of the employment relationship (contacting the employer concerning her physical improvement) and chooses, for whatever reasons, not to do so when the means of doing so are readily available and accessible. Contacting of a union in the employer's stead,*fn2 under the instant facts, does not show a level of

[ 29 Pa. Commw. Page 523]

    diligence sufficient to warrant a legal finding of attempts to maintain the employment relationship.

Finally, Claimant alleges procedural error and denial of due process in that the employer never presented any direct evidence upon which the referee or Board could base their findings. The short answer to this quite simply is that it was Claimant's duty to shoulder the burden of proof, before both the referee and Board and this she failed to do. Notwithstanding this proposition, substantial and competent evidence does exist of record without any direct employer's testimony to justify a Section 402(b)(1) denial.

Accordingly, we

Order

And Now, this 11th day of April, 1977, the decision of the Unemployment Compensation Board of Review is hereby affirmed.

Disposition

Affirmed.


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