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NICHOLAUS CERVENAK v. COMMONWEALTH PENNSYLVANIA (05/07/79)

decided: May 7, 1979.

NICHOLAUS CERVENAK, 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 Nicholaus Cervenak, No. B-138900.

COUNSEL

Eileen D. Yackmini, with her Edward A. Olds, for petitioner.

Charles G. Hasson, Assistant Attorney General, with him Gerald Gornish, Attorney General, for respondent.

Judges Crumlish, Jr., Mencer and Craig, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 42 Pa. Commw. Page 454]

Nicholaus Cervenak (claimant) appeals here from an order of the Unemployment Compensation Board of Review (Board) affirming the decision of the Bureau of Employment Security (Bureau) and a referee denying claimant benefits under the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 751 et seq. We reverse and remand to the Board.

Claimant was last employed by the United States Bureau of Mines (employer) in Pittsburgh as a janitor. Claimant's last day on the job was November 7, 1975, at which time he went on leave from his employer

[ 42 Pa. Commw. Page 455]

    because of a physical infirmity. He received annual leave pay and sick pay until it was exhausted on April 1, 1976, after which he continued to be listed by his employer as being on leave without pay.

On December 31, 1975, claimant met with his employer to discuss claimant's situation. A memorandum prepared by the employer after that meeting stated that claimant's doctor recommended light duty for claimant, and that the employer had no light duty positions available.

After exhausting his leave pay, claimant applied for unemployment compensation benefits, which were denied by the Bureau. Claimant appealed and after a hearing,*fn1 the referee affirmed the Bureau. The Board affirmed the referee's decision, and claimant appealed to this Court.

The referee and the Board found that because claimant was on leave without pay, he was not unemployed within the meaning of Section 401 of the Law, 43 P.S. § 801, as defined by Section 4(u) of the Law, 43 P.S. § 753(u). We disagree.

Section 401 simply requires that claimant be unemployed in order to collect compensation. Section 4(u) defines the term "unemployed": "An individual shall be deemed unemployed (I) with respect to any week (i) during which he performs no services for which remuneration is paid or payable to him and ...


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