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BARBARA CHECK v. COMMONWEALTH PENNSYLVANIA (01/09/81)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: January 9, 1981.

BARBARA CHECK, 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 Barbara Check, No. B-174629.

COUNSEL

Lawrence J. Briody, with him James M. Connell, Briody and Keenan, for petitioner.

Charles G. Hasson, Assistant Attorney General, with him Richard Wagner, Chief Counsel, and Edward G. Biester, Jr., Attorney General, for respondent.

Judges MacPhail, Williams, Jr. and Palladino, sitting as a panel of three. Opinion by Judge Palladino.

Author: Palladino

[ 56 Pa. Commw. Page 48]

This is an appeal from an order of the Unemployment Compensation Board of Review (Board) affirming the referee's decision which had denied unemployment compensation benefits to Barbara Check (claimant). We affirm.

Claimant was employed by Casco Sportswear Co., Inc. (employer) as a part-time single needle sewing machine operator at $3.65 per hour from September of 1973 to March 30, 1979. On March 27, 1979 claimant went to a Robert S. Stein, M.D. where she was treated for a chronic sinus problem. At this visit, because claimant indicated that she had an opportunity to visit her son in San Diego, California, Dr. Stein stated that a period of time in an area of low humidity would be helpful. On March 30, 1979 claimant advised her employer that she would not be coming into work

[ 56 Pa. Commw. Page 49]

    the following week. She did not mention her immediate health problem or her recent visit to the doctor as the reason for her proposed absence. At that time, her employer advised her, as he had in the past, of his policy that whenever employees requested time off or vacations that such time off was without his permission and that she was running the risk of not having a job upon her return. Claimant had, in the past, also been warned by her union representative about the consequences of taking time off from work without permission. Claimant went to San Diego the following week and returned home on April 8, 1979. When she telephoned her employer on April 9, 1979, as was her normal practice, she was told there was no longer any work for her. Her position had been filled while she was gone. Claimant filed an application for benefits on April 12, 1979. The Bureau (now Office) of Employment Security held on May 3, 1979 that claimant was ineligible for benefits on the ground of willful misconduct under Section 402(e) of the Unemployment Compensation Law (Act), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e). Claimant appealed and after a hearing, where claimant and employer's payroll clerk testified, the referee affirmed but based the denial of benefits upon Section 402(b)(1) of the Act, 43 P.S. § 802(b)(1) (terminating employment without necessitous and compelling reason).*fn1 Claimant again appealed

[ 56 Pa. Commw. Page 50]

    and the Board summarily affirmed the referee's decision.

Claimant initially contends that she did not voluntarily terminate her employment. She twice admitted, however, that she was fully aware of the employer's policy concerning unauthorized absences and of the risk she was taking in leaving work without the permission of her employer. Because she was aware of these facts, we must hold that she neglected to take those precautions which a reasonably prudent person would have taken to preserve their job and, therefore, that she left her employment voluntarily. She did not ask for a leave of absence due to sickness or even give notice to her employer that she was leaving due to illness.*fn2 When a claimant's conduct is not consistent with a desire to remain employed, we have held in the past that he has, in effect, voluntarily left his employment. See O'Donnell Unemployment Compensation Case, 173 Pa. Superior Ct. 263, 98 A.2d 406 (1953).

Secondly, claimant argues that her health problem was a necessitous and compelling reason to leave her job. In order to qualify for benefits under the Act, claimant has the burden of proving that she quit due to a necessitous and compelling reason. Pfafman v. Unemployment Compensation Board of Review, 7 Pa. Commonwealth Ct. 197, 300 A.2d 295 (1973); Kernisky v. Unemployment Compensation Board of Review, 10 Pa. Commonwealth Ct. 199, 309 A.2d 181 (1973). Whether we consider claimant's illness as temporary or permanent, claimant has not upheld her burden in

[ 56 Pa. Commw. Page 51]

    this case. "Where a claimant leaves employment because of a temporary disability with the expectation of later returning to work, he is required to apply for a leave of absence, give a timely notice, or otherwise manifest an intention not to abandon the labor force." Stover Unemployment Compensation Case, 196 Pa. Superior Ct. 92, 96, 173 A.2d 678, 680 (1961). In Deiss v. Unemployment Compensation Board of Review, 475 Pa. 547, 381 A.2d 132 (1977), our Supreme Court enumerated three criteria which must be met to prove serious health problems rise to necessitous and compelling cause. "A claimant must (1) offer competent testimony that at the time of termination adequate health reasons existed to justify termination; (2) inform the employer of the health problems; and (3) specifically request the employer to transfer him to a more suitable position within the company." Reid v. Unemployment Compensation Board of Review, 38 Pa. Commonwealth Ct. 355, 357, 393 A.2d 51, 53 (1978). The referee found, and the record supports such a finding, that the claimant did not satisfy any of these requirements.*fn3

[ 56 Pa. Commw. Page 52]

Because we find, after careful review of the record, that the Board did not capriciously disregard any competent evidence when he concluded that claimant voluntarily terminated her employment without necessitous and compelling cause, we affirm the Board's denial of benefits.

Accordingly, we will enter the following

Order

And Now, January 9, 1981, the order of the Unemployment Compensation Board of Review, Decision No. B-174629, dated August 8, 1979, is hereby affirmed.

Disposition

Affirmed.


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