Westwood v. Com., Unemployment Compensation Bd. of Review

• Decision Date: 05 November 1987
• Docket Number: No. 198,198
• Citation: 532 A.2d 1281,110 Pa.Cmwlth. 645
• Parties: Carolee WESTWOOD, Petitioner, v. COMMONWEALTH of Pennsylvania, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, Respondent. C.D. 1987.
• Court: Pennsylvania Commonwealth Court

Page 1281

532 A.2d 1281

110 Pa.Cmwlth. 645

Carolee WESTWOOD, Petitioner, v. COMMONWEALTH of Pennsylvania, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, Respondent.

No. 198 C.D. 1987.

Commonwealth Court of Pennsylvania.

Submitted on Briefs Sept. 9, 1987.

Decided Nov. 5, 1987.

Jeffrey L. Greenwald, Lehigh Valley Legal Services, Inc., Easton, for petitioner.

Clifford F. Blaze, Deputy Chief Counsel, Sandra L. Clouser, Asst. Counsel, Harrisburg, for respondent.

Before MacPHAIL and BARRY, JJ., and NARICK, Senior Judge.

MacPHAIL, Judge.

Carolee Westwood (Claimant) petitions for our review of an order of the Unemployment Compensation Board of Review (Board) which affirmed a referee's decision to deny benefits to Claimant on the ground that she voluntarily terminated her employment without cause of a necessitous and compelling nature. See 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). We affirm.

Claimant was employed by the Northampton County Children and Youth Service (Employer) as a clerk-typist until April 23, 1986, when she began a medical leave of absence, at her physician's direction, due to allergies which she suffered in her work environment. Claimant initially believed that her absence would last for only four weeks. On May 2, Employer's executive director requested Claimant to alert her physician that she would be requesting additional information regarding the length of Claimant's leave of absence. Claimant so informed her doctor who, on May 29, in response to a subsequent letter from the executive director, requested a three-month leave period on her behalf. Employer ultimately decided to grant a two-month leave of absence ending on June 25, 1986.

Claimant thereafter contacted Employer regarding her return to work, and was informed that she would need a medical release from her doctor prior to her return. On July 3, 1986, Claimant's physician signed the following release:

Carolee Westwood is a patient under my care for bronchial asthma and eczema. Her symptoms are worse in the old Courthouse Annex. She may return to work but not in the same building after July 7th, 1986[.]

On July 8, ¹ Claimant telephoned the personnel director's office to determine where she should report to work, but was told he was not available. Claimant made no other attempt to contact Employer. By letter dated July 11, Employer informed Claimant that it considered her to have abandoned her position effective July 8 for failing to contact Employer regarding her return to work.

Claimant's subsequent application for unemployment compensation benefits was granted by the Office of Employment Security which concluded that Claimant had cause of a necessitous and compelling nature for terminating her employment based on her physician's advice that Claimant not return to her prior employment location. Employer appealed this determination and, following a hearing, the referee reversed based on his conclusion that "claimant did not act as a reasonably prudent person when she was released to return to work. Instead of contacting her supervisor or the executive director, claimant called the personnel director who was not present and never called again." On appeal, the Board adopted the referee's fact findings without change and affirmed the denial of benefits.

Claimant contends on appeal to this Court that she neither abandoned her employment nor failed to take reasonable steps to maintain her employment relationship. She also argues that Employer failed to meet its duty of offering an alternative work assignment after it was made clear by Claimant's doctor that she could not return to her prior work location.

In a case involving a voluntary termination of employment, the claimant bears the burden of proof to establish cause of a necessitous and compelling reason for leaving work. Gennaria v. Unemployment Compensation Board of Review, 75 Pa.Commonwealth Ct. 354, 461 A.2d 918 (1983). We observe that Claimant contends in the instant matter that she did not voluntarily terminate her employment at all. The issue of whether a termination of employment is properly viewed as voluntary or involuntary, however, is one of law subject to our review. Connelly v. Unemployment Compensation Board of Review, 69 Pa.Commonwealth Ct. 326, 450 A.2d 1097 (1982). Moreover, an employee's failure to take all necessary and reasonable steps to preserve her employment will result in a voluntary termination of employment. Evasovich v. Unemployment Compensation Board of Review, 80 Pa.Commonwealth Ct. 395, 471 A.2d 921 (1984).

We conclude that the facts previously summarized support the legal conclusion that Claimant failed to take...