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PETER EVASOVICH v. COMMONWEALTH PENNSYLVANIA (02/23/84)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: February 23, 1984.

PETER EVASOVICH, 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 Peter Evasovich, No. B-203533.

COUNSEL

Sandra L. Smales, for petitioner.

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

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

Author: Williams

[ 80 Pa. Commw. Page 396]

Peter Evasovich (claimant) petitions for review of the decision and order of the Unemployment Compensation Board of Review (Board) denying benefits to him under the provisions of Section 402(b) of the Unemployment Compensation Law (Act), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897,

[ 80 Pa. Commw. Page 397]

    are consistent with each other and with its conclusions of law, and whether they can be sustained without a capricious disregard of competent evidence. Berardi v. Unemployment Compensation Board of Review, 73 Pa. Commonwealth Ct. 549, 458 A.2d 668 (1983). Medical problems may provide the requisite cause where the claimant has communicated these problems to the employer and where he proves by competent evidence that the health problems do exist and will justify termination. Gennaria.

Although the Board found that the claimant here met both of the tests for eligibility, it, nevertheless, held him ineligible. The Board concluded that he was ineligible because he had not requested a leave of absence for the period during which the employer was considering his request for a transfer and because it found that he had not allowed the employer sufficient time to effectuate his transfer. From this basis, the Board reasoned that he had not taken all necessary and reasonable steps to secure, i.e., to preserve, his employment. The issue before this Court is whether the Board's legal conclusions are correct.

While we agree that an employe has a duty to take all necessary and reasonable steps to preserve his employment,*fn1 we cannot agree with the Board that the claimant here failed to meet his legal obligations in this regard.

As the Board's brief correctly notes, we have held that the claimant's duty to preserve the employment relationship includes the duty to request a leave of absence, and that this duty is a corollary to the rule that a claimant must request a transfer to a more suitable position prior to a voluntary termination.

[ 80 Pa. Commw. Page 399]

Board of Review, 73 Pa. Commonwealth Ct. 465, 458 A.2d 335 (1983). Absent some indication from the employer that suitable work or a leave of absence was available, the claimant made every effort that legally could be expected of him to sustain the employer-employee relationship. See Tapia v. Unemployment Compensation Board of Review, 75 Pa. Commonwealth Ct. 548, 462 A.2d 915 (1983). Consequently, where the principle from which a corollary arises has fallen, we must hold that the corollary must also fall. Therefore, we must hold that the Board erred in imposing the additional requirement of requesting a leave of absence prior to his termination on the claimant. Gennaria.

The Board also based its disqualification of the claimant on the theory that he did not allow the employer sufficient time to effectuate a transfer for him. The Board did so without any statement as to what it would consider to be an acceptable period. While we appreciate the difficulty of constructing a general rule as to how long an employee must wait for the employer to act on a request for a transfer for health reasons, we cannot agree with the Board that the claimant here acted precipitously. He properly notified the employer through his manager of the problem and supplied medical certification to the employer. His subsequent inquiries to his manager as to the status of his transfer were met with unresponsive answers. Even as long as a week after his request, the employer had no clear idea on how it could accommodate him as can be seen from the testimony of the company treasurer at the hearing:

We oh, had discussed a couple of possibilities, our understanding that he needed to be out of that depart. (sic) totally. We had discussed alternatives. We did not come to a conclusion.

[ 80 Pa. Commw. Page 401]

Therefore, in light of the physical difficulties which the claimant was experiencing from the fumes in his department, we conclude that he afforded the employer a reasonable time prior to his termination to meet its responsibility to offer him a position suitable to his condition.

Accordingly, we must reverse the decision and order of the Board and remand for the computation of benefits due the claimant.*fn3

Order

And Now, this 23rd day of February, 1984, the decision and order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby reversed and the matter is remanded for computation of benefits.

Jurisdiction relinquished.

Disposition

Reversed and remanded.


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