Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

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

COMMONWEALTH COURT OF PENNSYLVANIA


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. ยง 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 the health problems do exist and will justify termination. Steffy v. Unemployment Compensation Board of Review, 499 Pa. 367, 453 A.2d 591 (1982). Because the medical

[ 75 Pa. Commw. Page 359]

    certificate presented here satisfies this requirement, it is clear that the claimant has met his burden.

In Genetin v. Unemployment Compensation Board of Review, 499 Pa. 125, 130-1, 451 A.2d 1353, 1356 (1982), the Supreme Court stated:

Where an employee because of a physical condition, can no longer perform his regular duties, he must be available for suitable work, consistent with the medical condition, to remain eligible for benefits. However, once he has communicated his problem to the employer and explained his inability to perform the regularly assigned duties, an employee can do no more. The availability of an employment position, the duties expected to be performed by one serving in that capacity, and the desirability of that individual for service in that capacity are managerial judgments over which the employee has no control. As long as the employee is available where a reasonable accommodation is made by the employer, that is not inimicable to the health of the employee, the employee has demonstrated the good faith effort to maintain the employment relationship required under the Act. (Emphasis added.)

The employer's representatives testified that suitable work was not available, and the claimant had clearly met the requirements of communicating his medical problem to his employer and offering competent evidence of that problem. Accordingly, in light of Genetin, we believe that the Board erred in imposing additional requirements upon the claimant, and we will reverse its order and remand for the computation of benefits.*fn5

[ 75 Pa. Commw. Page 360]

Order

And, Now, this 5th day of July, 1983, the order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby reversed and the matter remanded for computation of benefits.

Jurisdiction relinquished.

Disposition

Reversed and remanded.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.