Opinion
Argued December 5, 1977
February 14, 1978.
Unemployment compensation — Voluntary termination — Cause of a necessitous and compelling nature — Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897 — Burden of proof — Benefits paid in error — Scope of appellate review — Inconsistent findings — Capricious disregard of competent evidence — Effort to preserve employment.
1. An employe voluntarily terminating employment is ineligible for benefits under the Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897, unless he proves that such termination was for a cause of a necessitous and compelling nature. (589-90]
2. An employe who does not prove that his voluntary termination of employment was for a cause of a necessitous and compelling nature does not become eligible for unemployment compensation benefits merely because some benefits were paid to him in error and his claim was not contested by his employer. [590]
3. In an unemployment compensation case where the party with the burden of proof did not prevail below review by the Commonwealth Court of Pennsylvania is to determine whether the findings and conclusions were consistent and can be sustained without a capricious disregard of competent evidence. [590]
4. Employes who are unable to perform assigned work must make reasonable efforts to preserve employment by requesting a transfer to other work or a leave of absence and an employe who terminates employment for medical reasons without making such an effort or giving any notice to the employer is ineligible for unemployment compensation benefits. [590-1]
Argued December 5, 1977, before President Judge BOWMAN and Judges CRUMLISH, JR. and BLATT, sitting as a panel of three.
Appeal, No. 1915 C.D. 1976, from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of John Barni, No. B-135094.
Application to the Bureau of Employment Security for unemployment compensation benefits. Application denied. Applicant appealed to the Unemployment Compensation Board of Review. Denial affirmed. Applicant appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
John Barni, petitioner, for himself.
William J. Kennedy, Assistant Attorney General, with him Sydney Reuben, Assistant Attorney General, and Robert P. Kane, Attorney General, for respondent.
John Barni (claimant) has filed a petition for review of a decision of the Unemployment Compensation Board of Review (Board) denying him benefits pursuant to 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. § 802 (b)(1), which declares anyone who voluntarily quits his job to be ineligible for benefits.
The claimant last worked for the Borough of Marion Heights as a secretarial assistant until April 30, 1976, on which date he left his job. Claimant thereupon filed an application for benefits; which application was denied by the Bureau of Employment Security (Bureau) and a referee. On appeal to the Board, this decision was affirmed. However, for reasons unexplained in the record, claimant received two benefit checks before the Bureau formally denied his claim. This may have come about because claimant's only coverage as an employee of a local government was under the Special Unemployment Assistance Program, Title II of the Federal Emergency Jobs and Unemployment Assistance Act of 1974, 26 U.S.C. § 3304, which funded such benefits but made eligibility subject to the applicable state law.
Both the referee and the Board founded their decision upon claimant's failure to notify his employer that he suffered from hypertension and vascular disease, which, pursuant to doctor's orders, allegedly required him to leave his position.
Claimant's position is that since he received benefits for two weeks, and the employer did not appear to contest his claim at any administrative level, the payments should never have been suspended and must now be continued.
Claimant has failed to disclose to us, and we have been unable to discover, any precedent for this position. One who voluntarily terminates his employment assumes the burden of proving the necessitous and compelling nature of his termination. Baird v. Unemployment Compensation Board of Review, 30 Pa. Commw. 118, 121, 372 A.2d 1254, 1256-57 (1977). When addressing an appeal from a Board decision against the party with the burden of proof, our scope of review is limited to determining whether the Board's findings and conclusions are consistent, and whether they can be sustained without a capricious disregard of competent evidence. Pennsylvania Liquor Control Board v. Unemployment Compensation Board of Review, 29 Pa. Commw. 95, 98, 368 A.2d 1369, 1370-71 (1977).
The Board concluded, with substantial support in the record from both the claimant and the employer, that the claimant voluntarily terminated his employment without any notice or reason to his employer, and without any prior requests for a leave of absence or transfer to other work. "[E]mployees feeling unable to perform the duties of their job assignment are required to make a reasonable effort to preserve their employment by requesting work compatible with their condition." Nedd v. Unemployment Compensation Board of Review, 24 Pa. Commw. 514, 516, 357 A.2d 268, 269 (1976); see also Grimes Poultry Processing Corp. v. Unemployment Compensation Board of Review, 31 Pa. Commw. 542, 545, 377 A.2d 209, 211 (1977); Kubiak v. Unemployment Compensation Board of Review, 29 Pa. Commw. 421, 423, 371 A.2d 257, 258 (1977); see and compare Deiss v. Unemployment Compensation Board of Review, ___ Pa. ___, ___ A.2d ___ (1977).
As claimant failed to take this necessary action, we must affirm the order of the Board denying him benefits.
ORDER
NOW, February 14, 1978, the order of the Unemployment Compensation Board of Review is affirmed, and the appeal of John Barni is hereby dismissed.