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VIRGINIA M. ONTKO v. COMMONWEALTH PENNSYLVANIA (11/02/84)

decided: November 2, 1984.

VIRGINIA M. ONTKO, 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 Virginia M. Ontko, No. B-212134.

COUNSEL

Thomas P. Cole, II, for petitioner.

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

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

Author: Colins

[ 86 Pa. Commw. Page 46]

Virginia M. Ontko (claimant) appeals an order of the Pennsylvania Unemployment Compensation Board of Review (Board), affirming a referee's decision to deny benefits to claimant because she failed to prove that her leaving work was of a necessitous and compelling nature.*fn1

Claimant was employed as an assistant "market merchandiser" by J.C. Penney Company (employer)

[ 86 Pa. Commw. Page 47]

    for eight years. She submitted a written resignation on July 1, 1982 to become effective July 9, 1982.

Prior to her resignation, employer directed the claimant to contact the Special Services Department for medical and psychological services. Her job performance and actions indicated to employer that these services would be beneficial to claimant's well being. Claimant also visited her physician on May 26, 1982 because she was experiencing health problems which she attributed to her employment. Prior to her resignation claimant requested a transfer to another position. However, employer was unable to comply.

The Office of Employment Security determined that the claimant was ineligible for benefits. Claimant appealed and the referee affirmed. On further appeal to the Board, the decision of the referee was affirmed and his findings of fact adopted. This appeal followed.

An employee must initially meet two requirements in order to remain eligible for benefits when terminating his employment for health reasons: (1) he must be available for suitable work, consistent with his medical condition; and (2) he must have communicated his medical problem to his employer and explained his inability to perform the regularly-assigned duties. Genetin v. Unemployment Compensation Board of Review, 499 Pa. 125, 451 ...


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