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ERNEST J. GENETIN v. COMMONWEALTH PENNSYLVANIA (08/07/81)

decided: August 7, 1981.

ERNEST J. GENETIN, 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 Ernest J. Genetin, No. B-182458.

COUNSEL

M. Samuel Rosenzweig, for petitioner.

Francine Ostrovsky, Associate Counsel, with her Richard Wagner, Counsel, and Richard L. Cole, Chief Counsel, for respondent.

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

Author: Mencer

[ 61 Pa. Commw. Page 134]

Ernest J. Genetin (petitioner) has appealed from a decision of the Unemployment Compensation Board of Review (Board) which denied benefits on the basis of Section 402(b)(1) of the Unemployment Compensation Law (Act), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. ยง 802(b)(1). We affirm.

The petitioner had been employed as a truck driver by Hempfield Township (employer) for 15 years. At the end of September 1979, the petitioner took a leave of absence due to a medical problem. His doctor permitted him to return to work as of November 21, 1979. Although the doctor initially indicated that the petitioner could return to his employment as a truck driver, a subsequent medical certificate showed that the petitioner had been advised prior to November 21, 1979 to seek work which did not involve driving trucks.

The petitioner was contacted by his supervisor on November 20, 1979 and was asked about his plans to return to work. The petitioner explained that he intended to resign his employment because he was incapable of driving a truck. Nevertheless, the petitioner reported to work on November 21 and was assigned to sweep the floors for the balance of the day. He did

[ 61 Pa. Commw. Page 135]

    not return the next morning. He asserts that he knew that the sweeping task was a make-work position and that all of the regular positions available involved driving trucks. Since he could not drive a truck, the petitioner argues, the employer had no positions available for him. The petitioner concedes that he did not attempt to discuss with the employer whether suitable nondriving work could be found.

Where a claimant seeks unemployment compensation after terminating his employment for health reasons, he must establish that adequate health reasons existed at the time he quit to justify termination. Deiss v. Unemployment Compensation Board of Review, 475 Pa. 547, 381 A.2d 132 (1977). He must also show that he informed the employer of the health problem, Elshinnawy v. Unemployment Compensation Board of Review, 12 Pa. Commonwealth Ct. 597, 317 A.2d 332 (1974), and that he requested the employer to transfer him to a more suitable position within the company. Tollari v. Unemployment Compensation Board of Review, 10 Pa. Commonwealth Ct. 589, 309 A.2d 833 (1973).

In Deiss, the Court noted that the claimant had not satisfied part three of this test but still reversed the denial of benefits. The Court indicated that the failure to specifically request a transfer was not fatal to the claimant's case because "he testified that all jobs with [the employer] involved assembly line work, so such a request would have been a futile gesture." Id. at 554 n. 3, 381 A.2d at 135 n. 3.

The Deiss court recognized that a claimant's eligibility should not depend on whether he observes the proper formalities. Instead, eligibility should depend on whether the claimant is unemployed because he was truly incapable of maintaining the employment ...


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