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JONATHAN M. GRAD v. COMMONWEALTH PENNSYLVANIA (05/20/82)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: May 20, 1982.

JONATHAN M. GRAD, 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 Jonathan M. Grad, No. B-183706.

COUNSEL

Robert M. Davison, Miller and Davison, for petitioner.

Charles G. Hasson, Associate Counsel, with him, Richard L. Cole, Jr., Chief Counsel, for respondent.

Judges Rogers, Craig and MacPhail, sitting as a panel of three. Opinion by Judge Craig. Judge Mencer did not participate in the decision in this case.

Author: Craig

[ 66 Pa. Commw. Page 559]

In this unemployment compensation appeal, the claimant questions a denial of compensation by the Unemployment Compensation Board of Review, which affirmed a referee's decision denying benefits to the claimant on the basis that the claimant was not able to work or available for suitable work.*fn1

Jonathan Grad, employed by Country Miss, Inc. as an assistant controller for five months until October 26, 1979, apparently requested and received a thirty-day leave of absence*fn2 because of "pressing personal reasons." The claimant testified that he was urged by his employer to take the leave of absence or face termination for unsatisfactory work habits.*fn3 The claimant's supervisor corroborated that testimony,

[ 66 Pa. Commw. Page 560]

    stating that the suggestion to take a leave of absence to settle the claimant's problems was an alternative to termination so that the claimant could continue receiving medical benefits through the company.

The claimant's supervisor testified that he had offered the claimant an alternative position in the accounting department during a phone conversation in January or February 1980, but that the claimant refused the position.*fn4 The claimant's testimony verified this statement:

QEL: You requested . . . February 19th . . . you requested an additional leave of absence. During that conversation, you, he told you about coming back to work did he not? That there was this position available?

AC: It's very possible that that was the time. Yes.

In leave of absence cases, an initial determination must be made as to the voluntariness of the separation. Wincek v. Unemployment Compensation Board of Review, 50 Pa. Commonwealth Ct. 237, 412 A.2d 699 (1980). Despite some language which indicates otherwise, the referee apparently determined that the claimant's leave was involuntary, because he refused to base his decision on Section 402(b)(1) of the Unemployment Compensation Law, the voluntary quit disqualification.*fn5 The record clearly supports that determination; the employer's ultimatum left the claimant with little discretion in the matter. See Sweigert v. Unemployment Compensation Board of Review, 47 Pa. Commonwealth Ct. 421, 408 A.2d 561 (1979).

[ 66 Pa. Commw. Page 561]

In Wincek we held that a finding of an involuntary leave necessitates a further inquiry into whether the claimant remains able to work and available for suitable work under Section 401(d).

Here the referee concluded that the claimant's "pressing personal problems" rendered him unavailable for work. Moreover, we believe that the undisputed fact of claimant's refusal of the employer's offer of work in January or February of 1980 is decisive on that issue, even though there may have been a reduction in rank or salary. Eichman v. Unemployment Compensation Board of Review, 49 Pa. Commonwealth Ct. 21, 409 A.2d 1389 (1980) (rejection of suitable work because it amounted to a 55% reduction in gross weekly wages rendered the claimant ineligible for benefits).

Accordingly, we affirm the decision of the Unemployment Compensation Board of Review denying benefits to the claimant.

Order

Now, May 20, 1982, the order of the Unemployment Compensation Board of Review, No. B-183706, denying benefits to the claimant, is affirmed.

Judge Mencer did not participate in the decision in this case.

Disposition

Affirmed.


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