Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Elaine S. Ruckstuhl, No. B-177245.
Jerome Balter, for petitioner.
Charles G. Hasson, Assistant Attorney General, with him Richard Wagner, Chief Counsel, and Harvey Bartle, III, Acting Attorney General, for respondent.
Judges Wilkinson, Jr., MacPhail and Williams, Jr., sitting as a panel of three. Opinion by Judge MacPhail.
[ 57 Pa. Commw. Page 304]
This is an appeal by Elaine S. Ruckstuhl (Claimant) from a decision of the Unemployment Compensation Board of Review (Board), which affirmed the referee's denial of benefits pursuant to Section 402(b)(1) of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b)(1), on the ground that Claimant had voluntarily terminated her employment without cause of a necessitous and compelling nature. We agree.
Claimant was last employed by Chilton Company (Employer) as a part-time market research telephone interviewer for a period of eight months ending on June 1, 1979. Claimant was allergic to nicotine and encountered breathing difficulties when exposed to excessive cigarette smoke. Claimant did work in an area where she was exposed to cigarette smoke. Claimant voluntarily terminated employment because, she contends, the smoke caused her to become ill and thus her leave of work was for cause of a necessitous and compelling nature.
Although it is now generally accepted that cigarette smoke may be harmful to smokers and nonsmokers alike, we cannot presume for unemployment compensation purposes that anyone exposed to cigarette smoke in one's work environment is so physically harmed that a voluntary termination of employment will be automatically justified and unemployment benefits granted. Thus, we must treat this case as any other that involves a voluntary termination for health reasons.
[ 57 Pa. Commw. Page 305]
In voluntary termination cases, the burden is upon the employee to prove that he had necessitous and compelling reason for leaving his employment. Rinehart v. Unemployment Compensation Board of Review, 37 Pa. Commonwealth Ct. 15, 389 A.2d 243 (1978). To carry this burden, the employee who voluntarily terminates employment for compelling health reasons must meet the three requirements established by our Supreme Court in Deiss v. Unemployment Compensation Board of Review, 475 Pa. 547, 381 A.2d 132 (1977). Such a claimant must: "(1) offer competent testimony that at the time of her termination adequate health reasons existed to justify termination; (2) inform the employer of the health problem; and (3) specifically request the employer to transfer her to a more suitable position." (Emphasis added.) McQuiston v. Unemployment Compensation Board of Review, 37 Pa. Commonwealth Ct. 250, 253, 390 A.2d 317, 318 (1978). The Claimant's failure to meet any one of those three conditions will bar her claim for unemployment compensation benefits.
Where the party with the burden of proof does not prevail before the Board, our scope of review is limited to determining whether the findings of fact are consistent with each other and with the conclusions of law and whether they can be sustained without a capricious disregard of competent evidence. Lake v. Unemployment Compensation Board of Review, 48 Pa. Commonwealth Ct. 138, 409 A.2d 126 (1979).
Here, the Board found, inter alia, that Claimant failed to show that adequate health reasons existed to justify termination. Claimant is not required to prove that she was advised by her physician to quit, Pastorius v. Unemployment Compensation Board of Review, 35 Pa. Commonwealth Ct. 52, 384 A.2d 1039 (1978). However, ...