Appeal from the Order of the Unemployment Compensation Board of Review, in the case of In Re: Claim of Antowyne D. Charles, No. B-261028-B.
Anne P. Felker, for petitioner.
Gary L. Kelley, Assistant Counsel, with him, Clifford F. Blaze, Deputy Chief Counsel, for respondent.
Judges Craig and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Palladino.
[ 122 Pa. Commw. Page 440]
Antowyne D. Charles (Petitioner) appeals an order of the Unemployment Compensation Board of Review (Board) reversing the decision of a referee to award him unemployment compensation benefits. We affirm.
Petitioner was employed by Rotondo Penn Construction Company (Employer) as a concrete panel repairman from August 1986 to February 1, 1987. His job site was approximately forty-five (45) miles from his home and he used his car to get there. About three weeks prior to his last day of work, Petitioner requested that Employer lay him off because his car was gradually breaking down and he needed time to repair it, but Employer refused to do so. Petitioner testified that company policy specifically provides that if an employee is absent more than three days without a medical excuse, he will be terminated. Notes of Testimony at 5. When Petitioner's car became inoperable, he telephoned Employer on three consecutive work days to report off and to notify Employer of his car problems. On the third day, Petitioner quit.
The Office of Employment Security (OES) denied benefits and, on appeal, a referee, before whom only
[ 122 Pa. Commw. Page 441]
Petitioner testified, granted benefits. On Employer's appeal, the Board reversed the referee's award and denied benefits.*fn1
On appeal to this court, Petitioner presents two issues for our review: (1) whether the Board committed an error of law in concluding that Petitioner voluntarily terminated his employment; and (2) if Petitioner voluntarily terminated his employment, whether the Board erred in determining that he lacked cause of a necessitous and compelling nature for doing so.
Petitioner first contends that the Board erred in finding him ineligible for benefits under section 402(b) of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b). Section 402(b) renders ineligible for benefits an employee who voluntarily terminates his employment without cause of a necessitous and compelling nature. In a voluntary quit case, this court must first determine whether the facts surrounding Petitioner's separation from employment constitute a voluntary resignation or a discharge. Maines v. ...