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SHIRLEY A. WING v. COMMONWEALTH PENNSYLVANIA (02/26/81)

decided: February 26, 1981.

SHIRLEY A. WING, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT. ALICE M. KING, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW



Appeals from the Order of the Unemployment Compensation Board of Review in the cases of In Re: Claim of Shirley A. Wing, No. B-169839 and In Re: Claim of Alice M. King, No. B-170302.

COUNSEL

Charles J. Duke, for petitioner, Shirley A. Wing.

Paul Osborne, for petitioner, Alice M. King.

Stephen Lipson, Assistant Attorney General, with him Charles G. Hasson and John T. Kupchinsky, Assistant Attorneys General, Richard Wagner, Chief Counsel, and Edward G. Biester, Jr., Attorney General, for respondent.

Judges Wilkinson, Jr., Craig and MacPhail, sitting as a panel of three. Judges Rogers, Blatt and Williams, Jr., sitting as a panel of three. President Judge Crumlish and Judges Wilkinson, Jr., Mencer, Rogers, Blatt, Craig, MacPhail, Williams, Jr. and Palladino, sitting en banc. Opinion by Judge Blatt. Judge Williams dissents. Dissenting Opinion by Judge Craig. President Judge Crumlish joins this dissent. Judge Palladino joins this dissent.

Author: Blatt

[ 57 Pa. Commw. Page 105]

In these consolidated cases the claimants, Shirley A. Wing and Alice M. King, appeal from decisions of the Unemployment Compensation Board of Review (Board) disallowing their appeals from the referee's determinations that each was ineligible for unemployment benefits under Section 402(b)(1) of the Unemployment Compensation Law (Law)*fn1 because each had voluntarily terminated her employment without necessitous and compelling cause. We will separately consider the merits of each case, and, because the cases involve similar issues, we will then consider whether or not to remand the cases for additional findings.

[ 57 Pa. Commw. Page 106]

No. 789 C.D. 1979

Shirley A. Wing appeals from the decision of the Board that she was ineligible to receive benefits because she voluntarily terminated her employment as a sales clerk with Brown's Boot Shop without necessitous and compelling cause.

The record supports the referee's findings that Ms. Wing began an authorized sick leave on April 4, 1978. A note from her physician indicated that as of July 31, 1978, she was able to return to work. On August 9 and 10, 1978, she contacted the store manager and then the store owner to discuss her vacation period. Although she was not granted permission to begin a vacation, she testified that, in view of her understanding of company policy which provided three weeks vacation after fifteen years of regular employment, she was entitled to vacation time. She did not report to work when her sick leave ended, and, by way of letter dated August 14, 1978, the employer notified her that it considered her employment with the shop terminated.*fn2 The employer's witness testified that the job had remained available for Ms. Wing until the termination date of August 14.

The referee deemed Ms. Wing's termination to be voluntary because she had failed to "keep her employer advised" of her "future intentions" with regard to returning to work, and, therefore, had abandoned her employment. The referee seemed to be applying that line of cases in which this Court has held that prolonged absences are regarded as voluntary terminations where the length and circumstances of the absence manifest an intention to abandon the employment.

[ 57 Pa. Commw. Page 107]

    of the employment. Similarly, in those cases where requested vacations are denied, and the employee is notified that taking the time will result in a discharge, the resulting separation from employment is deemed voluntary. Manjares v. Unemployment Compensation Board of Review, 15 Pa. Commonwealth Ct. 317, 325 A.2d 644 (1974).

The missing element in the present case, however, is an event, such as the letter in Schwarzenbach, supra, or the threat of discharge in Manjares, supra, shifting the onus of the choice of actions onto the employee, so that intention may reasonably be discerned in the employee's action or inaction.

Here, the referee found only that, although Ms. Wing was not granted vacation, she "assumed she was on vacation" and she was "informed by letter . . . that she was terminated." The referee did not find that the employer threatened to discharge her if she insisted on pursuing her vacation plans. Nor was there evidence in the record that she was informed, at any time before she was discharged, that failure to return or to contact the employer would result in her discharge.

Because we believe that a four-day absence is not, without additional evidence that the employee has abandoned her employment, a sufficiently prolonged period of time as a matter of law to constitute such an abandonment, we must conclude that the Board erred as a matter of law in disqualifying the claimant from benefits under Section 402(b)(1) and we must reverse its order dismissing her appeal.

No. 803 C.D. 1979

Alice M. King was employed by Centre Engineering (employer) when on or about March 17, 1978 she requested and was granted a six-week leave of absence. Near the ...


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