No. 9 W.D. Appeal Dkt. 1982, Appeal from the Order of the Commonwealth Court at No. 890 C.D. 1980, Affirming the Decision and Order of the Unemployment Compensation Board of Review.
William J. McCabe, Greensburg, M. Samuel Rosenzweig, Laurel Legal Services, Inc., New Kensington, for appellant.
Richard Cole, Chief Counsel, Francine Ostrovsky, Associate Counsel, Unemployment Compensation Bd. of Review, Harrisburg, for appellee.
O'Brien, C.j., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ. Larsen, J., files a concurring opinion.
The question raised in the instant appeal is whether Ernest J. Genetin, appellant, voluntarily left his employment with the Hempfield Township Board of Supervisors (Supervisors) so as not to be eligible for unemployment compensation benefits under Section 402(b)(1) of the Pa. Unemployment Compensation Act (Act), Act of December 5, 1936, P.L. 2987, § 402, as amended, 43 P.S. § 802(b)(1). Section 402(b)(1) provides in pertinent part:
An employee shall be ineligible for compensation for any week --
In which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature, . . .: Provided, that a voluntary leaving of work because of a disability if the employer is able to provide other suitable work, shall be deemed not a cause of necessitous and compelling nature . . . .
Genetin was employed by the Supervisors for 15 years as a truck driver. At the end of September, 1979, appellant took a leave of absence as a result of medical problems. He returned to work on November 21, 1979 and was assigned work as a sweeper because his condition prevented him from performing his former duties as a truck driver. He did not work thereafter. The referee determined that appellant failed to show that the voluntary termination of employment was as a result of a cause of a necessitous and compelling nature and therefore determined that he was
ineligible for benefits under section 402(b)(1). The referee's decision was affirmed by the Unemployment Compensation Board of Review (Board), appellee, and by a three judge panel of the Commonwealth Court, 61 Pa. Commw. 133, 433 A.2d 565. Judge Craig dissented expressing the view that the cause should be remanded to the Board for additional findings.
The specific question that must be focused upon is what is required of an employee who elects to terminate employment for health reasons if he wishes to maintain entitlement to unemployment compensation benefits. It is apparent from the expressed language of section 402(b)(1) that the voluntary election by the employee to terminate the employment does not automatically bar eligibility. Deiss v. Unemployment Compensation Board of Review, 475 Pa. 547, 381 A.2d 132 (1977); Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 378 A.2d 829 (1977); Goughnour v. Unemployment Compensation Board of Review, 54 Pa. Commonwealth Ct. 83, 420 A.2d 30 (1980); Kanouse v. Unemployment Compensation Board of Review, 9 Pa. Commonwealth Ct. 188, 305 A.2d 782 (1973); James v. Unemployment Compensation Board of Review, 6 Pa. Commonwealth Ct. 489, 296 A.2d 288 (1972). It must additionally be shown that the ...