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LINDA ANN TOKAR v. COMMONWEALTH PENNSYLVANIA (05/08/78)

decided: May 8, 1978.

LINDA ANN TOKAR, 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 Linda Ann Tokar, No. B-138488.

COUNSEL

David A. McVey, with him Stevens, Clark, Laubach & Semple, for petitioner.

Susan Shinkman, Assistant Attorney General, with her Sydney Reuben, Assistant Attorney General, and Robert P. Kane, Attorney General, for respondent.

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

Author: Mencer

[ 35 Pa. Commw. Page 243]

Linda Ann Tokar (claimant) appeals from a decision of a referee and the Unemployment Compensation Board of Review (Board) that she is unavailable for suitable work within the meaning of Section 401(d) of the Unemployment Compensation Law (Act), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. ยง 801(d), and therefore ineligible for unemployment compensation benefits. The referee and the Board believed that a claimant who is on a leave of absence must automatically be deemed unavailable for suitable work.*fn1 We remand for factual determinations as to (1) whether or not claimant left work voluntarily or involuntarily and (2) whether or not there was a reasonable opportunity for claimant to secure some substantial type of work despite the limitations on her availability.

Claimant was employed as a home economics teacher by the Northgate School District. Her last day of work was February 10, 1976. Her application for unemployment compensation was denied by the Bureau of Employment Security, and she appealed to a referee. A hearing was held at which only the claimant testified. The referee denied benefits, and the Board disallowed a further appeal. Claimant's petition for review in this Court followed.

Claimant's testimony before the referee may be summarized as follows: Claimant lives with her three sisters, one of whom, Sylvia, is blind and suffers from a malignant brain tumor. In the last week of January, Sylvia's condition deteriorated suddenly, requiring her immediate hospitalization. At that time,

[ 35 Pa. Commw. Page 244]

    claimant's supervisor, the principal of the high school, told claimant she could take as much time off work as needed to see her sister through the crisis. Sylvia was hospitalized for a week, during which time claimant did not report to work at all. She returned to work on Monday, February 2, 1976, but was unexpectedly called away in the afternoon by another emergency concerning Sylvia. Claimant was unable to return to work that week due to a severe cold for which she consulted a physician. When she returned to work on February 10, 1976, the principal indicated that he had discussed her situation with the superintendent and that they felt that claimant's family situation was too unstable to allow her to work a normal schedule. The principal told the claimant that she would have to take an indefinite leave of absence or he would have to request her resignation. Claimant then met with the superintendent who agreed with the principal and rejected claimant's counterproposal of a 1-month leave of absence. Rather than lose her job completely, claimant agreed to take an indefinite leave until her domestic problems were settled. She subsequently applied for full-time and part-time employment with several employers in the area and eventually secured part-time employment as a clerk-typist.*fn2

[ 35 Pa. Commw. Page 245]

Based on this testimony, the referee made the following findings of fact which were, in effect, affirmed by the Board when it disallowed claimant's appeal:

1. The claimant was last employed by the Northgate School District for approximately one year as a teacher ...


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