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LEO CICCO v. COMMONWEALTH PENNSYLVANIA (08/03/81)

decided: August 3, 1981.

LEO CICCO, JR., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeal from the Order of the Unemployment Compensation Board of Review in the case of In Re: Claim of Leo Cicco, Jr., No. B-179465.

COUNSEL

Catherine T. Martin, for petitioner.

John T. Kupchinsky, Associate Counsel, with him Richard Wagner, Counsel, and Richard L. Cole, Jr., Chief Counsel, for respondent.

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

Author: Macphail

[ 61 Pa. Commw. Page 310]

Leo Cicco, Jr. (Claimant) was last employed by Audio Innovators (Employer) as a sales representative on a commission against draw of $288 bi-weekly. Claimant's last day of work was July 5, 1979; but he only worked about one and one-half hours on that date because he had a doctor's appointment at about 10:30 a.m. The doctor decided that Claimant should be hospitalized immediately due to his current physical condition. Claimant had been suffering from rheumatoid arthritis and, since October 1978, an ulcer. Claimant was hospitalized until July 13, 1979.

[ 61 Pa. Commw. Page 311]

Between July 23 and July 27, 1979, Claimant reported to work each day, in order to clear up the work that was pending prior to his hospitalization. Claimant stated to Employer on July 23, 1979, that he was quitting on the advice of his doctor. His doctor told him to look for other work in which he would not have stress and strain to aggravate his condition. Claimant did not present any medical certification to Employer nor did he request a leave of absence. Claimant did not respond to Employer's suggestion that when he was able to return to work perhaps something could be worked out such as telephone soliciting work.

On the basis of these facts, the Unemployment Compensation Board of Review (Board) determined initially that Claimant was eligible for benefits under Section 402(b)(1) of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L. [1937] 2897, 43 P.S. § 802(b)(1),*fn1 because Claimant voluntarily terminated his employment due to his health condition and upon his doctor's advice, which constituted cause of a necessitous and compelling nature.

Secondly, however, the Board determined that Claimant was rendered ineligible for benefits by Section 401(d) of the Law, 43 P.S. § 801(d),*fn2 which requires that in order to be eligible for compensation an employee must be "able to work and available for suitable work." In its discussion, the Board stated in regard to the Section 401(d) issue:

The claimant's physician has certified that he was unable to accept gainful employment as of July 8, 1979, and will be unable to do so for an indeterminate period of time. Therefore, the

[ 61 Pa. Commw. Page 312]

Board cannot hold that the claimant is able and ...


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