Bogucki v. Com., Unemployment Compensation Bd. of Review
| Decision Date | 30 October 1980 |
| Citation | 421 A.2d 528,54 Pa.Cmwlth. 419 |
| Parties | Nancy A. BOGUCKI, Petitioner, v. COMMONWEALTH of Pennsylvania, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, Respondent. |
| Court | Pennsylvania Commonwealth Court |
Richard Wagner, Gen. Counsel, James K. Bradley, Unemployment Compensation Bd. of Review, Harrisburg, for respondent.
Before MENCER, ROGERS and WILLIAMS, JJ.
Nancy A. Bogucki has appealed from an order of the Unemployment Compensation Board of Review (Board) denying her unemployment compensation benefits on the ground that she was not "able to work and available for suitable work." Section 401(d) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 801(d) (Law).
Ms. Bogucki was last employed as a cook by Sweet Williams Restaurant in Greensburg, Pennsylvania. Her last day of work was January 13, 1979. At that time, she informed her employer that, due to pregnancy, she could no longer perform her duties as a cook. Ms. Bogucki requested lighter work from her employer and, upon being told that no lighter work was available, she accepted a leave of absence running from January 15, 1979 to July 30, 1979. Ms. Bogucki thereafter applied for unemployment benefits which were denied by the Bureau (now Office) of Employment Security. Ms. Bogucki appealed this determination and a referee's hearing was held, at which only Ms. Bogucki appeared and testified. The referee affirmed the Bureau's determination, concluding that Ms. Bogucki was ineligible for benefits not only under Section 401(d) of the Law but also under Section 402(b)(1) of the Law, 43 P.S. § 802(b)(1) which provides that a person is ineligible for unemployment compensation benefits for any week in which unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature. Ms. Bogucki appealed the referee's decision to the Board. The Board, without taking additional evidence, held that Section 402(b)(1) of the Law did not apply in this case. However, the Board also held that Ms. Bogucki was ineligible for unemployment compensation benefits under Section 401(d) because, by voluntarily accepting a leave of absence, she was not "able to work and available for suitable work."
Ms. Bogucki contends that the Board erred in determining that she was not able to work and available for work solely because she accepted a leave of absence due to pregnancy. We agree. The Board found as fact that Ms. Bogucki "is not able and available for suitable work during the period at issue." The Board's discussion in its opinion makes it clear that this finding of unavailability was based upon Ms. Bogucki's acceptance of a leave of absence due to pregnancy. However, in circumstances substantially identical to those of the case, we have held that the pregnant woman's acceptance of a leave of absence is not voluntary and that she cannot for this reason alone be held to be ineligible under Section 401(d) of the Law. Hamelers v. Unemployment Compensation Board of Review, 48 Pa.Cmwlth. 121, 408 A.2d 1198 (1979); Defeo v. Unemployment Compensation Board of Review, 38 Pa.Cmwlth. 161, 392 A.2d 337 (1978). Accordingly, we will reverse the Board's order.
There remains the need to determine whether or not Ms. Bogucki was able to work and available for suitable work. It is not required, however, that we remand this case for a factual determination of Ms. Bogucki's initial...
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Sellers v. National Spinning Co., Inc.
...aff'd, 660 F.2d 1001 (4th Cir.1981), cert. denied, 459 U.S. 1150, 103 S.Ct. 796, 74 L.Ed.2d 1000 (1983); Bogucki v. Unempl. Comp. Bd. of Review, 54 Pa.Commw. 419, 421 A.2d 528 (1980); 26 U.S.C. § 3304(a)12 (1976). The issue in this case, however, does not concern plaintiff's temporary leave......
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Pennsylvania Elec. Co. v. Com., Unemployment Compensation Bd. of Review
... ... held that a pregnant woman's acceptance of a leave of ... absence, after requesting other work from her employer, does ... not constitute a voluntary termination of employment so as to ... render the claimant ineligible for benefits. Bogucki v ... Unemployment Compensation Board of Review, 54 Pa ... Commonwealth Ct. 419, 421 A.2d 528 (1980), citing ... Hamelers v. Unemployment Compensation Board of Review, 48 ... Pa. Commonwealth Ct. 121, 408 A.2d 1198 (1979) and Defeo ... v. Unemployment Compensation Board of Review, 38 Pa ... ...
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Pennsylvania Elec. Co. v. Com., Unemployment Compensation Bd. of Review
... ... Under these circumstances, this Court has repeatedly held that a pregnant woman's acceptance of a leave of absence, after requesting other work from her employer, does not constitute a voluntary termination of employment so as to render the claimant ineligible for benefits. Bogucki v. Unemployment Compensation Board of Review, 54 Pa. Commonwealth Ct. 419, 421 A.2d 528 (1980), citing Hamelers v. Unemployment Compensation Board of Review, 48 Pa. Commonwealth Ct. 121, 408 A.2d 1198 (1979) and Defeo v. Unemployment Compensation Board of Review, 38 Pa. Commonwealth Ct. 161, 392 ... ...