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BRIAN GENNARIA v. COMMONWEALTH PENNSYLVANIA (07/05/83)

decided: July 5, 1983.

BRIAN GENNARIA, 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 Brian Gennaria, No. B-195679-B.

COUNSEL

Peter B. Macky, for petitioner.

Steven J. Neary, Associate Counsel, with him Richard L. Cole, Jr., Chief Counsel, for respondent.

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

Author: Blatt

[ 75 Pa. Commw. Page 355]

Brian Gennaria (claimant) appeals here an order of the Unemployment Compensation Board of Review (Board) which affirmed a referee's denial of benefits pursuant to Section 402(b)(1) of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b)(1) (voluntary quit without cause of a necessitous and compelling nature).

The Board found that the claimant was last employed as a machine operator by Cabinet Industries (employer). He had a medical history of chronic bronchitis

[ 75 Pa. Commw. Page 356]

    and received a medical leave of absence until March 8, 1981. He returned to the employer's worksite the next day with a medical certificate recommending that his exposure to dust be temporarily limited so as to avoid aggravating his bronchitis. At a meeting of the claimant's foreman, the personnel manager, the vice-president, and the production manager, at which the claimant was not present, it was concluded that no suitable work was then available for him, and, after he was so informed by the foreman, he went to visit the personnel manager who instructed him to report back to his foreman and seek permission to see the production manager. The claimant, however, did not return to seek this permission. The referee concluded, therefore, that the claimant had quit his position*fn1 and the Board affirmed, noting that "it remained incumbent upon claimant to follow his employer's procedures until a final determination was made" as to suitable work*fn2 or a second leave of absence.*fn3

[ 75 Pa. Commw. Page 357]

In a voluntary quit case,*fn4 of course, the claimant has the burden of proof to show cause of necessitous

[ 75 Pa. Commw. Page 358]

    and compelling reason for leaving. Fontana v. Unemployment Compensation Board of Review, 71 Pa. Commonwealth Ct. 274, 454 A.2d 678 (1983), and our scope of review includes errors of law. Id. Moreover, medical problems may provide a cause of a necessitous and compelling nature. Findora v. Unemployment Compensation Board of Review, 47 Pa. Commonwealth Ct. 301, 407 A.2d 938 (1979). And the claimant has an obligation to communicate these problems to the employer, Elshinnawy v. Unemployment Compensation Board of Review, 12 Pa. Commonwealth Ct. 597, 317 A.2d 332 (1974), which he clearly did here, and to offer competent evidence that ...


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