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COLLEEN SCHULER v. COMMONWEALTH PENNSYLVANIA (02/19/85)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: February 19, 1985.

COLLEEN SCHULER, 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 Colleen S. Schuler, No. B-215895.

COUNSEL

Solomon Weinstein, Hyatt Legal Services, for petitioner.

James K. Bradley, Associate Counsel, with him, Charles G. Hasson, Acting Deputy Chief Counsel, for respondent.

President Judge Crumlish, Jr. and Judge Colins and Senior Judge Blatt, sitting as a panel of three. Opinion by President Judge Crumlish, Jr. This decision was reached prior to the resignation of Judge Williams, Jr.

Author: Crumlish

[ 87 Pa. Commw. Page 591]

Schuler appeals an Unemployment Compensation Board of Review order which reversed a referee's decision and denied her benefits on the ground that she voluntarily took a leave of absence. We vacate and remand.

In this appeal, Schuler, a nursing assistant, primarily contends that she is eligible for benefits notwithstanding a six-month pregnancy leave of absence.

The Board correctly concluded that Schuler voluntarily requested and received the leave of absence, a fact not in dispute. However, the Board also concluded that Schuler's voluntary request rendered her ineligible for benefits under Section 401(d)(1) of the

[ 87 Pa. Commw. Page 592]

Unemployment Compensation Law.*fn1 We hold that this conclusion misinterprets the Act.

Although, in leave of absence cases, an initial determination must be made as to the voluntariness of the separation, Grad v. Unemployment Compensation Board of Review, 66 Pa. Commonwealth Ct. 558, 445 A.2d 568 (1982) (citing Wincek v. Unemployment Compensation Board of Review, 50 Pa. Commonwealth Ct. 237, 412 A.2d 699 (1980)), this determination is now to be made under Section 402(b).*fn2 "The eligibility for unemployment compensation of applicants who terminate their employment for marital, filial or

[ 87 Pa. Commw. Page 593]

    domestic reasons must be determined under Section 402(b)(1);*fn3 that is, each claimant must be afforded the opportunity to demonstrate that his termination was for a necessitous and compelling nature." Wallace v. Unemployment Compensation Board of Review, 38 Pa. Commonwealth Ct. 342, 351, 393 A.2d 43, 47 (1978).*fn4

We agree with the Board's decision insofar as it found that Schuler voluntarily requested her leave of absence but we must vacate and remand this case for findings*fn5 as to whether Schuler had necessitous and compelling cause for her separation from employment*fn6 and, if so, findings as to whether she was able to work and was available for suitable work.*fn7

Vacated and remanded.

[ 87 Pa. Commw. Page 594]

Order

The order of the Unemployment Compensation Board of Review, No. B-215895 dated March 14, 1983, is vacated and this case is remanded for findings as to whether Schuler had necessitous and compelling cause for her separation from employment and, if so, findings as to whether she was able to work and available for suitable work.

Jurisdiction relinquished.

This decision was reached prior to the resignation of Judge Williams, Jr.

Disposition

Vacated and remanded.


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