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PENNSYLVANIA ELECTRIC COMPANY v. COMMONWEALTH PENNSYLVANIA (04/05/83)

decided: April 5, 1983.

PENNSYLVANIA ELECTRIC COMPANY, 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 Sherry B. Carlin, No. B-195272.

COUNSEL

William J. Payne, Kleinbard, Bell & Brecker, for petitioner.

Jeffrey Gonick, Associate Counsel, with him Francine Ostrovsky, Associate Counsel, and Richard L. Cole, Jr., Chief Counsel, for respondent.

Judges Blatt, Williams, Jr. and Craig, sitting as a panel of three. Opinion by Judge Williams, Jr.

Author: Williams

[ 73 Pa. Commw. Page 259]

The Pennsylvania Electric Company (employer) appeals an order of the Unemployment Compensation Board of Review (Board) granting benefits to Sherry B. Carlin (claimant).

For purposes of this appeal, the claimant was last employed as a meter reader by the Pennsylvania Electric Company. On November 18, 1980, when she was approximately five months pregnant, she presented a doctor's note to her employer which stated that because of the inclement weather during the winter months, she was advised against continuing her job as a meter reader until she had her baby. After requesting other work from her employer, which he could not provide, the claimant was placed on sick leave. Subsequently, she applied for unemployment benefits which were granted by the referee and affirmed by the Board. The employer now appeals to this Court.

The employer first contends that the claimant should be denied benefits in that she failed to establish compelling and necessitous reasons for leaving

[ 73 Pa. Commw. Page 260]

    her employment. Initially, we note that the requirement of establishing compelling and necessitous reasons for leaving one's employment is applicable only in cases involving voluntary terminations under Section 402(b) of the Unemployment Compensation Law (Law).*fn1 Such is not the case here. The claimant did not voluntarily leave her work, but rather was placed on sick leave after her request for other work was denied. Under these circumstances, this Court has repeatedly held that a pregnant woman's acceptance of a leave of absence, after requesting other work from her employer, does not constitute a voluntary termination of employment so as to render the claimant ineligible for benefits. Bogucki v. Unemployment Compensation Board of Review, 54 Pa. Commonwealth Ct. 419, 421 A.2d 528 (1980), citing Hamelers v. Unemployment Compensation Board of Review, 48 Pa. Commonwealth Ct. 121, 408 A.2d 1198 (1979) and Defeo v. Unemployment Compensation Board of Review, 38 Pa. Commonwealth Ct. 161, 392 A.2d 337 (1978). Accordingly, the employer's 402(b) argument must be dismissed in that that section of the law is inapplicable to the facts of this case.

The employer next asserts that the claimant should be denied benefits since she failed to establish her availability for work, in that she made no effort to obtain other suitable employment and fully intended to resume her job as a meter reader at the close of her sick leave. In unemployment cases, the burden of proving availability for suitable work is on the claimant. Koba v. Unemployment Compensation Board of Review, 29 Pa. Commonwealth Ct. 264, 370 A.2d 815 (1977). In meeting this burden, the claimant

[ 73 Pa. Commw. Page 261]

    is entitled to a presumption of availability once he or she registers for work with the Bureau of Employment Security. Galla v. Unemployment Compensation Board of Review, 62 Pa. Commonwealth Ct. 238, 435 A.2d 1344 (1981), Berks v. Unemployment Compensation Board of Review, 18 Pa. Commonwealth Ct. 503, 336 A.2d 671 (1975). Once this presumption has been rebutted, it disappears, and the claimant is burdened with the affirmative obligation to produce evidence of his or her availability for work. Galla, and Molnar v. Unemployment Compensation Board of Review, 40 Pa. Commonwealth Ct. 518, 397 A.2d 869 (1979). The question of availability, however, is ultimately a question of fact for the Board, which this Court must affirm if supported by substantial evidence. Goodwin v. Unemployment Compensation Board of Review, 32 Pa. Commonwealth Ct. 285, 378 A.2d 1308 (1977). In the instant case, the employer has attempted to show a failure on the part of the claimant to ...


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