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JUDITH MOSS v. COMMONWEALTH PENNSYLVANIA (11/23/87)

decided: November 23, 1987.

JUDITH MOSS, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeal, No. 1792 C.D. 1986, from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Judith Moss, No. B-248990.

COUNSEL

David L. Hill, for petitioner.

James K. Bradley, Assistant Counsel, with him, Clifford F. Blaze, Deputy Chief Counsel, for respondent.

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

Author: Narick

[ 111 Pa. Commw. Page 230]

Judith Moss (Claimant) has appealed from an order of the Unemployment Compensation Board of Review (Board) which overturned a referee's decision to grant her unemployment compensation benefits on the basis of Section 402(b)(1) of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. ยง 802(b)(1). The Board determined that Claimant did not have a necessitous and compelling reason for terminating her employment with the Southeastern Pennsylvania Transit Authority (Employer). We reverse.

The facts as found by the Board may be summarized as follows. Claimant was employed for 23 years by Employer, working as a receptionist and doing various clerical tasks. Due to the stressful nature of her work, she developed various physical ailments which caused her to be unable to work after February 20, 1985. She notified her employer of this disability and submitted proper documentation. She received disability benefits from February, 1985 until April, 1985. Thereafter, she was on unpaid sick leave until June 1, 1985, when she voluntarily terminated her employment and began receiving disability retirement benefits from her Employer. In May, 1985, her physician advised her that she was physically able to resume work in a less stressful position. The Board found that the Employer had a transfer policy, that Claimant was aware of it and that she failed to avail herself of the transfer procedure, instead electing to pursue disability retirement benefits.

The issue before us concerns the conclusion of law the Board applied to the above facts. Claimant argues

[ 111 Pa. Commw. Page 231]

    that, having met the requirements enunciated in Genetin v. Unemployment Compensation Board of Review, 499 Pa. 125, 451 A.2d 1353 (1982) of (1) offering competent testimony to show that adequate health reasons existed to justify termination of employment at the time of termination and (2) having informed the employer of a health problem, she has established a necessitous and compelling reason for terminating her employment. We agree.

The Board, in seeking to distinguish several of this Court's decisions following Genetin, contends that Claimant, because she was on a leave of absence from her employment, was required to remain on that leave for a reasonable amount of time in order to maintain the employment relationship. The Employer here had a policy that provided that an employee could apply for transfer to positions not currently open, and that such applications would be retained on file for one year. The Board asserts that because Claimant, by virtue of her seniority status, had sufficient sick leave to remain on leave for a year, she was required to do so. However, our cases following Genetin suggest the opposite result. Our Supreme Court in Genetin made it clear that a claimant has the burden to prove that she quit for necessitous and compelling reasons. The Court stated the general rule as follows:

Where an employee because of a physical condition, can no longer perform his regular duties, he must be available for suitable work, consistent with the medical condition, to remain eligible for benefits. However, once he has communicated his medical problem to the employer and explained his inability to perform the regularly assigned duties, an employee can do ...


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