No. 588 January Term, 1977 Appeal from the Order of the Commonwealth Court of Pennsylvania, filed August 20, 1976, at No. 457 C.D., 1975, affirming the Decision of the Unemployment Compensation Board of Review at Decision No. B-1223274-B, Decision dated February 21, 1975.
Charles Buss, in pro. per.
Sydney Reuben, Charles G. Hasson, Asst. Attys. Gen., for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Manderino, Larsen and Flaherty, JJ. Roberts, J., filed a dissenting opinion. Manderino, J., did not participate in the decision in this case.
This is an appeal from a decision of the Commonwealth Court which affirmed the Unemployment Compensation Board of Review's determination that a Referee properly denied unemployment compensation for appellant, Charles Buss.*fn1
Appellant was last employed as a nixie clerk in a central mark-up system of the United States Postal Service. The system where appellant worked was relocated to another city in May of 1974, at which time appellant was informed he would have no work to do thereafter. Appellant was not separated from the rolls of the Postal Service but rather was given a choice of using accrued annual leave or sick leave or
being placed on indefinite leave without pay pending resolution of his disability retirement case with the Civil Service Commission. (Management, not appellant, had applied for his disability retirement.)
Appellant turned down annual leave pay, saying he does not wish to use up annual leave if he has been laid off. With regard to sick leave pay, appellant claims that despite his affliction with rheumatoid arthritis he is able to work and could not truthfully sign a statement, required in an application for sick leave, that he is incapacitated for duty by sickness. Prior to becoming a nixie clerk, appellant was a mail carrier. However, the Postal Service's Regional Medical Officer recommended that, due to appellant's debilitating arthritis, appellant should no longer be permitted to drive a mail truck because driving with such a condition would be hazardous. The Medical Officer recommended that appellant be given a clerk's job, apparently believing appellant was not incapacitated for duty as a clerk, and just three (3) months after appellant began working as a nixie clerk the central mark-up system was moved. The Referee's findings of fact concluded that appellant is able and available for suitable work. Appellant's refusal to accept annual leave or sick leave resulted in his being placed on leave without pay.
The sole issue on appeal is whether the Referee correctly determined that appellant is not "unemployed" under the following definition of unemployment contained in the Unemployment Compensation Law, Act of December 5, ...