Appeal from the Order of the Unemployment Compensation Board of Review in the case of In Re: Claim of Bobbie Lee McMiller, No. B-226458.
G. Roger Bowers, with him, Vincent J. Walsh, Jr., for petitioner.
James K. Bradley, Associate Counsel, with him, Charles G. Hasson, Acting Deputy Chief Counsel, for respondent.
Judges Craig and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri.
Southeastern Pennsylvania Transportation Authority (SEPTA) appeals from a decision and order of the Unemployment Compensation Board of Review (Board) reversing the referee and granting unemployment compensation to Claimant Bobbie Lee McMiller under Section 3 of the Unemployment Compensation Law (Law)*fn1
(declaration of public policy that benefits will be granted only to persons unemployed through no fault of their own). We affirm.
Claimant was employed by SEPTA as a bus operator until March 8, 1983. On March 9, Claimant was involved in a domestic altercation during which he allegedly shot two other people and then himself. The referee and the Board so found. From March 9 onward, Claimant was in the hospital recuperating from a bullet wound to his chest. He was eventually given permission by his physician to return to work on June 17, 1983. SEPTA would not permit Claimant to return to work, however, until Claimant obtained a work-release from SEPTA's physician. Because SEPTA had given Claimant a deadline for returning to work and because his appointment had been postponed several times, Claimant went to the workplace to try and pinpoint the exact date of his appointment with the SEPTA physician. Upon leaving the employer's premises, Claimant was hit by a bus and, as a result, hospitalized. Claimant was, therefore, unable to return to work by July 4, 1983, the deadline set by SEPTA. By letter dated July 6, 1983, Claimant was advised that SEPTA considered Claimant to have voluntarily terminated his employment effective that date.
When Claimant applied for unemployment compensation the employer advised the Office of Employment Security (OES) that Claimant was separated from his employment when he failed to return to work upon the expiration of his accrued sick leave. The OES found that Claimant did not return to work as scheduled, that Claimant requested a leave of absence which the employer denied, and that Claimant failed to submit any medical certification to his employer stating that he was unable to work. The Notice of Determination issued by the OES advised Claimant that his application for
benefits was disapproved pursuant to Section 402(b) of the Law*fn2 (voluntary quit).
Nevertheless, at the hearing scheduled before the unemployment compensation referee upon Claimant's appeal from the OES' determination, the employer's representative advised the referee that it wished to proceed under Section 3 of the Law as Claimant had been separated from his employment, not for failure to return to work upon the expiration of his accrued sick leave as the employer had previously asserted, but because of the non-work-related domestic altercation.*fn3 The Claimant agreed, and the referee issued his decision concluding that the facts presented regarding the domestic altercation warranted a denial of benefits under Section 3. The Board on appeal stated that the employer had not produced evidence to show that Claimant's conduct, which led ...