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CARMELLA WENRICH v. COMMONWEALTH PENNSYLVANIA (03/09/78)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: March 9, 1978.

CARMELLA WENRICH, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT

Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Carmella Wenrich, No. B-137927.

COUNSEL

Sanford S. Marateck, with him Frank J. Konopka, and Lark, Makowski, Marateck & Konopka, for appellant.

William J. Kennedy, Assistant Attorney General, with him Sydney Reuben, Assistant Attorney General, and Robert P. Kane, Attorney General, for appellee.

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

Author: Disalle

[ 34 Pa. Commw. Page 187]

This case is before us upon a petition for review of an order of the Unemployment Compensation Board of Review (Board) which disallowed the appeal of Carmella Wenrich (Claimant) from a referee's decision denying her unemployment compensation benefits. The referee determined that the Claimant

[ 34 Pa. Commw. Page 188]

    was ineligible for benefits pursuant to Section 402(b)(1) of the Unemployment Compensation Law (Act), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. ยง 802(b)(1), for voluntarily terminating her employment without cause of a necessitous and compelling nature.

Claimant worked as a turner for Len-Jef Inc. for approximately five years. On June 8, 1976, Claimant left her employment. For a period of time previous to this date, Claimant suffered from headaches and nervous tension. Prior to leaving, she presented to her employer two medical certificates which reflected her physician's advice that she leave her employment. The first certificate presented stated that the Claimant was advised to take a leave of absence but was able to accept employment as of July 6, 1976. The contents of the second certificate are not part of the record.

On July 2, 1976, Claimant applied for unemployment compensation benefits. The Bureau of Employment Security disallowed her application and Claimant appealed. A hearing before a referee was conducted on September 23, 1976. Claimant was not represented by legal counsel at this hearing.

The referee found that the Claimant had voluntarily terminated her employment without cause of a necessitous and compelling nature and denied her benefits pursuant to Section 402(b)(1) of the Act. Claimant's appeal to the Board was disallowed upon consideration of the record and she petitioned this Court for review of the Board's determination.

Admittedly, the medical certificate entered into evidence discloses that the Claimant was advised by her physician to quit her employment. The same certificate states that the Claimant was able to perform light work on July 6, 1976. The record also

[ 34 Pa. Commw. Page 189]

    shows that the Claimant filed an unemployment compensation claim on July 2, without previously requesting lighter work. This would tend to support the referee's conclusion that the Claimant voluntarily terminated her employment without cause of a necessitous and compelling nature. Health reasons which force a person to terminate his or her employment may constitute cause of a necessitous and compelling nature. Such a person must demonstrate, however, that: (1) at the time of termination, adequate health reasons existed to justify termination of employment, (2) the employer was informed of the health problems and, (3) that every effort was made to sustain the employer-employe relationship. Deiss v. Unemployment Compensation Board of Review, Pa. , 381 A.2d 132 (1977).

A close examination of the record, however, demonstrates that proper appellate review of the administrative process in this instance is not possible. The record does not contain the second medical certificate issued by the Claimant's physician. The employer's testimony indicates that he lost the certificate. The record suggests that her physician may have advised the Claimant not to work in the factory under any circumstances. This, unfortunately, was not developed in the record or ruled upon. If the effect of the second certificate was as the testimony suggests, the Claimant would not have been required to request lighter work. It may be that Claimant is eligible to receive unemployment compensation benefits under such a fact situation.

The failure to make a finding based upon the second medical certificate precludes our affirming the determination of the referee and Board. Findings of fact "must include all findings necessary to resolve the issues raised by the evidence and which are relevant

[ 34 Pa. Commw. Page 190]

    to a decision." Page's Department Store v. Velardi, 464 Pa. 276, 287, 346 A.2d 556, 561 (1975). Since that was not the case here, we must remand.

Order

And Now, this 9th day of March, 1978, the order of the Unemployment Compensation Board of Review at Decision No. B-137927 is vacated and the case is remanded to the Board for the purpose of taking additional evidence and making new and adequate findings of fact consistent with this opinion.

Disposition

Order vacated. Case remanded.

19780309

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