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NANCY J. NOVOTNY v. COMMONWEALTH PENNSYLVANIA (01/10/84)

decided: January 10, 1984.

NANCY J. NOVOTNY, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Nancy J. Novotny, No. B-208878.

COUNSEL

Vincent J. Roskovensky, II, for petitioner.

James K. Bradley, Associate Counsel, with him Richard L. Cole, Jr., Chief Counsel, for respondent.

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

Author: Doyle

[ 79 Pa. Commw. Page 462]

This is an appeal by Nancy J. Novotny (Claimant) of an order of the Unemployment Compensation

[ 79 Pa. Commw. Page 463]

Board of Review (Board) which affirmed a decision of a referee denying benefits. We reverse.

Claimant was employed by the Oglevee Floral Company. On December 11, 1981, she notified her employer that she would be unable to work for an unspecified period of time because of ill health. On February 23, 1982, Claimant returned to Oglevee and informed her employer that her doctor had released her to return to work. At that time, Claimant was informed that her position had been filled and she would not be able to resume her employment. Claimant filed a claim for unemployment benefits which was denied by the Office of Employment Security (OES) under Section 402(b) 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). Following a hearing, a referee affirmed the OES determination, concluding that Claimant had voluntarily terminated her employment. The referee found that Claimant had failed to request a leave of absence and thereby failed to take the necessary steps to preserve the employer-employee relationship. On appeal, the Board affirmed. Petition for review by this Court followed.

The Board argues that the law in this area is clear:

Although sickness may be good cause for leaving work, continued absence from work may, through the lapse of an unreasonably long period of time, become a voluntary termination of the employer-employee relationship without good cause so as to preclude a recovery under Section 402(b)(1).

[ 79 Pa. Commw. Page 464]

Simpson v. Unemployment Compensation Board of Review, 29 Pa. Commonwealth Ct. 245, 247, 370 A.2d 432, 434 (1977), citing Unemployment Compensation Page 464} Board of Review v. Tate, 22 Pa. Commonwealth Ct. 4, 347 A.2d 501 (1975). The referee found and the Board argues that Claimant's failure to request a formal leave of absence was indicative of her abandonment of the employer-employee relationship. We do not agree. In Check v. Unemployment Compensation Board of Review, 56 Pa. Commonwealth Ct. 47, 423 A.2d 1140 (1981), we held that failure to secure the employer's permission for an absence, when the claimant had not informed the employer of the medical need for the absence, was indicative of abandonment of the employer-employee relationship. In the case at bar, however, ...


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