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ALBERT T. MALLIA v. COMMONWEALTH PENNSYLVANIA (04/17/86)

decided: April 17, 1986.

ALBERT T. MALLIA, JR., 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 Albert T. Mallia, Jr., No. B-228720.

COUNSEL

P. Patrick Morrisey, for petitioner.

John W. English, Jr., Associate Counsel, with him, Charles G. Hasson, Acting Deputy Chief Counsel, for respondent.

Judges MacPhail, Doyle, and Barry, sitting as a panel of three. Opinion by Judge Barry.

Author: Barry

[ 96 Pa. Commw. Page 420]

Albert T. Mallia, Jr. (claimant) appeals from an order of the Unemployment Compensation Board of Review (Board) which reversed a decision of the referee awarding him benefits.

The claimant had been employed by Brookdale on the Lake, a resort in the Poconos, as a groundskeeper and maintenance man until his last day of work on June 15, 1983. On that date, the claimant injured his hands in a non-work related accident; as a result, he underwent surgery and was unable to perform his regular duties. While still under his physician's care, the claimant informed his employer that he would return to work as soon as his doctor permitted such return. On or about July 13, 1983, the claimant was told that a Debbie Cordalis from the personnel department wished to see him. According to the claimant's testimony, Ms. Cordalis asked that the claimant provide her with a definite return date. When the claimant told her he was unable to do so, Ms. Cordalis allegedly told the claimant that he would have to be terminated. The claimant was subsequently released by his physician to return to work.

The claimant then filed an application for unemployment benefits which was denied by the Office of Employment Security on the basis that claimant voluntarily terminated his employment. He then appealed and a hearing was held before the referee. The claimant testified as narrated in the prior paragraph. The employer presented the testimony of one Alex Tasselmyer, the maintenance supervisor at Brookdale on the Lake. When asked if he had ever informed the appellant that

[ 96 Pa. Commw. Page 421]

    he had been fired, Mr. Tasselmyer replied in the negative.

Following the hearing, the referee awarded benefits giving credence to the claimant's testimony that Ms. Cordalis had fired him when he had been unable to give a definite return date. The referee further concluded that the record would not support the legal conclusion that the claimant had engaged in willful misconduct.

The employer then took an appeal to the Board. Without taking additional testimony, the Board found that the claimant had not been fired but had been told to inform the employer when he was able to return to work. Because the claimant had not returned after being released from his physician's care, the Board concluded that the claimant had voluntarily terminated his employment without cause of a necessitous and compelling nature and was, therefore, ineligible for benefits. This appeal followed.

As the Office of Employment Security ruled initially that the claimant had voluntarily quit his job, the claimant had the burden of proving his separation was other than a voluntary quit. Bowman v. Unemployment Compensation Board of Review, 49 Pa. Commonwealth Ct. 170, 410 A.2d 422 (1980). Because the claimant, with the burden of proof, did not prevail before the Board, our scope of review is limited to determining whether the factual findings are consistent, whether those factual findings are consistent with the legal conclusions and whether the factual findings can be sustained without a capricious disregard of competent evidence. Id. Finally, a determination that one has voluntarily ...


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