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STERLING SIMPSON v. COMMONWEALTH PENNSYLVANIA (12/14/78)

decided: December 14, 1978.

STERLING SIMPSON, JR., 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 Sterling Simpson, No. B-143811.

COUNSEL

Paul Adrian Robb, for petitioner.

Reese F. Couch, Assistant Attorney General, with him Gerald Gornish, Acting Attorney General, for respondent.

Judges Wilkinson, Jr., Rogers and MacPhail, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 39 Pa. Commw. Page 247]

This is an appeal from an order of the Unemployment Compensation Board of Review affirming the decision of a referee denying benefits to the petitioner, Sterling Simpson, Jr., pursuant to Section 402(b)(1) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. ยง 802(b)(1) which provides:

An employe shall be ineligible for compensation for any week --

(b)(1) In which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature. . . .

Mr. Simpson was employed at $10.27 per hour as an ironworker for Townsend & Bottom from April 1976 until November 4, 1976. He worked at a job site in

[ 39 Pa. Commw. Page 248]

Shippingport, Pennsylvania, approximately 43 miles from his home in Pittsburgh. Mr. Simpson did not own an automobile and there was no public transportation between his home and Shippingport. Other employes of Townsend & Bottom went to work in car pools and a group of them chartered a bus from the Pittsburgh area to Shippingport. Mr. Simpson rode to work with a fellow employe until October 19, 1976, after which the fellow employe's automobile was inoperable. Mr. Simpson failed to report for work for the next eleven work days. On November 4, 1976 he was terminated from employment because of his absence from work. As noted, he was declared ineligible as a voluntary quit.

Mr. Simpson first says that there is not substantial evidence in the record to support the conclusion that he voluntarily left his work. The question of whether one has voluntarily quit his job is one of law to be determined upon the facts found by the compensation authorities. Correa v. Unemployment Compensation Board of Review, 31 Pa. Commonwealth Ct. 13, 374 A.2d 1017 (1977). One who is absent from work without authorization and without taking steps to preserve the relationship by telling the employer if and when he will return may be held to have voluntarily left. Unemployment Compensation Board of Review v. Metzger, 28 Pa. Commonwealth Ct. 571, 368 A.2d 1384 (1977).

It is undisputed that Mr. Simpson was absent from work without authorization for eleven consecutive work days between October 20 and November 3, 1976. He testified that he called his employer twice during this time. The first call was made on October 25, 1976 and on this occasion Mr. Simpson told his employer that he had "no way down" and that he "didn't know how ...


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