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DOROTHY J. SHAFFER v. COMMONWEALTH PENNSYLVANIA (04/03/84)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: April 3, 1984.

DOROTHY J. SHAFFER, 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 Dorothy D. Shaffer, No. B-210496.

COUNSEL

Donald Marritz, for petitioner.

Michael D. Alsher, Associate Counsel, with him Richard L. Cole, Jr., Chief Counsel, for respondent.

Judges Rogers, Palladino and Barbieri, sitting as a panel of three. Opinion by Judge Palladino.

Author: Palladino

[ 81 Pa. Commw. Page 309]

Dorothy J. Shaffer, (Claimant), appeals from an order by the Unemployment Compensation Board of Review (Board), affirming a decision by the referee which denied benefits to the Claimant.

The Claimant was employed as a draftsman/surveyor from September of 1978 until June 21, 1982. Her duties were divided between surveying (outdoors) and drafting (indoors). On May 24, 1982 the Claimant informed her employer that on the recommendation of her physician she would be unable to continue her outdoor work because of her pregnancy. Claimant also advised her employer that she would like a maternity leave of absence to begin on June 10, 1982. The duration of the leave of absence was not made clear to the employer nor was it defined at

[ 81 Pa. Commw. Page 310]

    the referee's hearing. The employer gave the Claimant only indoor work from May 24 until she left, and hired a replacement employee to work part-time until June 10, and full-time thereafter.

Claimant filed an application for benefits on June 6, 1982, which was denied. She then sought to rescind her request shortly before her leave of absence was to begin. The employer explained that he had already hired a replacement who expected to switch from part-time to full-time on June 10, but that he would give her what he could in the nature of indoor drafting work after June 10. The Claimant's duties have been fully assumed by the replacement and the Claimant worked a few days between June 6 and June 21, but has not been offered work since June 21, 1982.

Among the many issues contained in this case first and foremost is whether or not the Claimant voluntarily terminated her employment.

In a case with remarkably similar facts this Court held that where the claimant takes a temporary leave of absence with the expectation of returning to work, she must take reasonable steps to preserve her employment by manifesting an intention not to abandon the labor force. Gillooly v. Unemployment Compensation Board of Review, 76 Pa. Commonwealth Ct. 20, 462 A.2d 958 (1983). A determination of whether or not the Claimant expressed such an intention to her employer is essential; without it, the leaving may be construed either as a temporary leave of absence or as an abandonment of the labor force. Flannick Unemployment Compensation Case, 168 Pa. Superior Ct. 606, 610, 82 A.2d 671, 673 (1951).

In the case before us the referee made no factual determination on the intention issue. His only finding related to this issue was that the Claimant advised her employer that she would begin a maternity leave

[ 81 Pa. Commw. Page 311]

    of absence on June 10, 1982, and that she would be unavailable for work thereafter. The referee did find that there had been a voluntary termination but this finding was based solely on whether the Claimant's attempt to rescind her "resignation" was effective.

After a careful review of the record we believe that there is no substantial evidence to support the referee's finding that the Claimant voluntarily terminated her employment. Under Gillooly the Claimant had to manifest an intention to return to the labor force. The record reflects ample evidence which shows that the Claimant expressed her desire to return to work following the birth of her child and that her employer was aware of her intention.*fn1 Having decided that the Claimant did not voluntarily terminate her employment we need not address the question of a "necessitous and compelling" reason. Accordingly, we reverse the decision of the Unemployment Compensation Board of Review and order that benefits be granted.

Order

And Now, April 3, 1984, the order of the Unemployment Compensation Board of Review, dated October

[ 81 Pa. Commw. Page 3121]

, 1982, is hereby reversed and remanded for the computation of benefits.

Jurisdiction relinquished.

Disposition

Reversed and remanded for computation of benefits.


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