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SHARON S. STANKIEWICZ v. COMMONWEALTH PENNSYLVANIA (08/10/87)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: August 10, 1987.

SHARON S. STANKIEWICZ, 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 Sharon S. Stankiewicz, No. B-244285.

COUNSEL

David B. Marateck, Lark, Makowski, Marateck & Konopka, for petitioner.

Jonathan Zorach, Assistant Counsel, with him, Clifford F. Blaze, Deputy Chief Counsel, for respondent.

President Judge Crumlish, Jr., Judge Colins, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 108 Pa. Commw. Page 341]

Sharon Stankiewicz (petitioner) petitions for review of an order of the Unemployment Compensation Board of Review (Board) which denied her benefits pursuant to Section 402(b) of the Unemployment Compensation Law (Law), 43 P.S. ยง 802(b) (voluntary termination without cause of a necessitous and compelling nature).

The referee, as affirmed by the Board, made the following findings:

1. Claimant was last employed by Geisinger Medical Center, Danville, Pa. as a Radiologic Technologist at the rate of approximately $10.06 an hour. Her employment history with this employer began December 26, 1976 and lasted to and including January 2, 1985, her last day of work.

2. Prior to her last day of work, the claimant had requested and received approval for a leave of absence for a period of 6 months beginning January 3, 1985 and ending on or about July 2, 1985.

3. The letter of January 23, 1985 officially approving the leave of absence contained a statement to the effect that the employer could not guarantee the claimant a position for her at the end of her leave; however, she was informed that she would be given preferential consideration

[ 108 Pa. Commw. Page 342]

    over new applicants for positions in her former department.

4. Notwithstanding the employer's statement informing the claimant that she could not be guaranteed a position to return to work at the end of her leave, the claimant still engaged [sic] the leave of absence.

5. Claimant was considered a valued employee and continued employment in her regular position was available had she chosen to remain and not engage [sic] the leave of absence in question.

The petitioner, relying on Mastroianni v. Unemployment Compensation Board of Review, 81 Pa. Commonwealth Ct. 408, 473 A.2d 746 (1984), contends that she did not voluntarily terminate her employment. The Board argues that Mastroianni is distinguishable because in that case the employer would have kept the employee's position open for her so long as she attempted to return at the end of her leave of absence.*fn1

[ 108 Pa. Commw. Page 343]

In considering this Section 402(b) case, we must review the underlying facts as found by the referee to determine whether or not the termination of employment was voluntary as a matter of law. Comstock v. Unemployment Compensation Board of Review, 63 Pa. Commonwealth Ct. 380, 437 A.2d 1318 (1981). And, of course, our review is limited to determining whether or not constitutional rights were violated, an error of law was committed, or a necessary finding is unsupported by substantial evidence. Wurster v. Unemployment Page 343} Compensation Board of Review, 102 Pa. Commonwealth Ct. 417, 518 A.2d 350 (1986).

Initially we note that the petitioner applied for benefits beginning on June 30, 1985 with a waiting week ending date of July 6, 1985, and a compensable week ending date of July 13, 1985. The findings, however, are concerned only with the time at which the petitioner decided to commence her leave of absence*fn2 in January 1985, rather than with the period at issue, i.e., the time after the leave had expired and the petitioner had expressed a desire to return to work in July 1985. Furthermore, although not the subject of a finding of fact, the record indicates that the petitioner was informed by her employer that, if she desired to return to work at the end of her leave, she had to give two weeks advance written notice; that on June 17, 1985 she sent the required notice, but she was then informed that no positions were available; and that in July 1985 the employer extended her leave for an additional year, which extension was confirmed by the employer's letter dated August 12, 1985.*fn3

[ 108 Pa. Commw. Page 344]

As we stated in Mastroianni, an employee does not necessarily voluntarily terminate employment by taking a leave of absence, just because the position concerned is filled during that absence, so long as the employee contacts the employer prior to the expiration of the leave and indicates a desire to return to work.

The Board here, however, made no findings whatever concerning either the petitioner's attempt to return to work or the employer's unilateral extension of the leave. Absent these necessary findings, therefore, we are unable to perform appellate review.*fn4 Heckman v. Unemployment Compensation Board of Review, 81 Pa. Commonwealth Ct. 558, 474 A.2d 73 (1984).

Accordingly, we will remand this matter for the needed findings.

Order

And Now, this 10th day of August, 1987, the order of the Unemployment Compensation Board of Review in the above-captioned matter is vacated and the record is remanded for findings as to whether or not the petitioner attempted to return to work and whether or not the employer unilaterally extended the leave of absence for an additional year.

Jurisdiction relinquished.

Disposition

Vacated and remanded.


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