Appeal from the Order of the Unemployment Compensation Board of Review, in case of In Re: Claim of B-237737-B.
Michael Goldberg, for petitioner.
Paul E. Baker, Acting Deputy Chief Counsel, for respondent.
Judges Barry and Palladino (p), and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri. Judge Palladino dissents.
[ 105 Pa. Commw. Page 102]
Roderick R. Mellott, Claimant, appeals here an order of the Unemployment Compensation Board of Review (Board) that, upon reconsideration, denies him unemployment compensation on the basis that he was not able and available for work as required by Section 401(d)(1) of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 801(d)(1).
Mellott was last employed doing plumbing and heating work when he voluntarily terminated his employment due to mental health problems. He filed an application for benefits with the Office of Employment Security (OES) which determined he was ineligible for benefits under Section 402(b) of the Law, 43 P.S.
[ 105 Pa. Commw. Page 103]
§ 802(b), which prohibits the payment of unemployment compensation to claimants who voluntarily terminate their employment without compelling cause. Mellott appealed that determination to a referee who, following a hearing, affirmed the OES determination that he was ineligible for benefits. He then appealed to the Board which affirmed the referee's decision. Mellott then requested and was granted reconsideration by the Board. Following oral argument, the Board issued a new decision and order in which it made findings of fact virtually the same as those of the referee with one exception. The Board found the employer had been aware of his problems but he had not discussed his health problems with the employer. The Board also found that when he laid his keys on his employer's desk on August 10, 1984, and announced that he was tired of being around people who only cared about money, the employer had no intention of laying him off or discharging him. Finally, the Board found that he was psychologically disturbed on October 15, 1984. The Board thus found while Mellott had a compelling reason to voluntarily terminate his employment, he was nevertheless ineligible for benefits under Section 401(d)(1) of the law since, due to his alleged psychological disability, he was not able and available for work during the claim weeks at issue between September 2, 1984, and the date of his doctor's visit, October 15, 1984.
Mellott argues on appeal that there is no evidence in the record to support the Board's conclusion that he was not able and available for work during the weeks at issue. He also argues that it was improper for the Board to consider Section 401(d)(1) of the Law on reconsideration as he was not provided notice that the Board would consider that issue, nor had the OES, the referee, or the Board considered that issue in any of the prior determinations. Mellott argues that the Board's consideration
[ 105 Pa. Commw. Page 104]
of that issue constituted a violation of the Board's own regulations.
The issues that the Board may consider in an appeal from a referee's decision are limited by 34 Pa. ...