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CHARLES NICOTERO v. COMMONWEALTH PENNSYLVANIA (05/12/87)

decided: May 12, 1987.

CHARLES NICOTERO, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeal from the Order of the Unemployment Compensation Board of Review in the case of In Re: Claim of Charles Nicotero, No. B-241721.

COUNSEL

Lorraine S. Caplan, for petitioner.

Samuel H. Lewis, Assistant Counsel, with him, Clifford F. Blaze, Deputy Chief Counsel, for respondent.

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

Author: Macphail

[ 106 Pa. Commw. Page 101]

Charles Nicotero (Claimant) petitions for our review of an Unemployment Compensation Board of Review (Board) order which affirmed an order of a referee denying benefits. We vacate and remand.

Claimant was employed at The Village Montessori School (Employer) from October 26, 1984 until January 9, 1985. He had been hired to teach a classroom of students in the fourth through eighth grade level. On January 8, 1985 Employer's president informed Claimant that Claimant was being moved to the infant/toddler room until it could be determined whether Claimant could receive a valid teaching certificate for elementary education. Employer's president was told by the Pennsylvania

[ 106 Pa. Commw. Page 102]

Department of Education that it would render a decision in the matter on January 11, 1985. On January 10, 1985, after Claimant attempted to talk to the president about the matter, he left the school without authorization.

On the evening of January 10, 1985, Claimant and the president had two heated telephone conversations. During one of them Claimant, according to the referee's finding of fact number 16, told the president that he "had left the school due to illness and that he could not work with very young children." A review of the evidence reveals that it is undisputed that during this conversation Claimant informed the president that he had a back condition and that Claimant discussed with the president exactly what he was required to do in the infant/toddler room that exacerbated his back condition.*fn1

The next day, January 11, 1985, Claimant notified the school that he was still available for work as a teacher but that he would not be available to work as a "day care worker or a janitor."

On January 14, 1985, Claimant again spoke with the president. The president told Claimant at this time that Claimant would be unable to teach the fourth through eighth grade class unless he received an elementary certification from the State. Claimant never returned to work.

Many of the referee's 23 findings of fact which were adopted in their entirety by the Board are really nothing more than a summation of the evidence. In his "reasoning," the referee, with appropriate reference to Genetin v. Unemployment Compensation Board of Review, 499 Pa. 125, 451 A.2d 1353 ...


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