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ELEANOR ZIMMERMAN v. COMMONWEALTH PENNSYLVANIA (10/16/86)

decided: October 16, 1986.

ELEANOR ZIMMERMAN, 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 Eleanor Zimmerman, No. B-238315.

COUNSEL

Andrew F. Erba, for petitioner.

Samuel H. Lewis, 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 Judge Craig. Dissenting Opinion by Judge Palladino.

Author: Craig

[ 101 Pa. Commw. Page 275]

The issue in this unemployment compensation case is as follows:

Where an employee makes a timely rescission of her resignation and there is no evidence that the employer has relied or acted upon that resignation, may the employee postpone the resignation date and continue working for a temporary period, or can the employer enforce the original resignation date because only a postponement was involved, rather than a permanent or indefinite return to work?

Claimant Eleanor Zimmerman has appealed from an order of the Unemployment Compensation Board of Review which affirmed a decision of the referee denying the claimant's application for unemployment benefits on

[ 101 Pa. Commw. Page 276]

    the voluntary quit basis, under section 402(b) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. ยง 802(b)(1).

The facts, as found by the referee and adopted by the board, are clear: On June 14, the claimant submitted a resignation from her job with the Philadelphia Assistance Office, to be effective August 2, 1984. However, on June 21 the claimant rescinded her resignation. At that point, the employer had taken no steps to replace her. Aside from a work injury absence from June 20 through July 9, the claimant continued to work until August 2, at which time she ceased work only because the employer insisted upon enforcing that resignation date. The facts confirm that the claimant would have retired September 24, when her workmen's compensation claim was settled.*fn1

[ 101 Pa. Commw. Page 277]

Thus the facts indicate that, but for the employer's refusal to accept the rescission, the claimant would have postponed her retirement at least until September 24, and therefore would have worked and earned pay for seven more weeks. Clearly her unemployment during those seven weeks was solely because of the employer's fiat, rather than because of the claimant's choice.

Under the board's finding of fact, it is clear that this claimant did not intend to remain in the work force permanently,*fn2 but it ...


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