Opinion
April 13, 1961.
June 15, 1961.
Unemployment Compensation — Appeals — Timeliness — Notice of appeal within ten day period — Filing of formal petition thereafter within ten days — Mailing appeal form on next business day after tenth day falling on holiday — Interpretation by board of its own rule — Voluntary termination of employment — Pregnancy — Failure to request leave of absence or, subsequently, reinstatement.
1. In an unemployment compensation case, in which it appeared that the referee's decision was handed down on December 4; that on or about December 14 the employer wrote to the bureau for appeal forms; that the tenth day after the appeal form was mailed out was Christmas, and on the next two days, Saturday and Sunday, December 26 and 27, the bureau was closed; and that the appeal was actually mailed out on Monday, December 28, although it did not reach the board until December 29; it was Held that (a) the appeal was timely within the exception where notice of intention to appeal is given within the ten days and the formal petition for appeal is filed thereafter within ten days after the form is mailed by the bureau to the appellant; and (b) it was not error for the board to interpret its own rule to the effect that the appeal was timely if the completed appeal form was mailed by the employer on the next business day after the tenth day, which fell on a holiday.
2. Where it appeared that claimant quit her job because she was six and one-half months pregnant; that she did not request a leave of absence when she left; and that when she again became available for work after birth of the child she made her claim for benefits without previously notifying her former employer or requesting reinstatement; it was Held that the board properly found that claimant voluntarily left her employment without cause of a necessitous and compelling nature.
Before ERVIN, WRIGHT, WOODSIDE, WATKINS, MONTGOMERY, and FLOOD, JJ. (RHODES, P.J., absent).
Appeal, No. 201, April T., 1960, by claimant, from decision of Unemployment Compensation Board of Review, No. B-56996, in re claim of Chalys U. Hegley. Decision affirmed.
Donnell D. Reed, with him Reed Bastacky, for appellant.
Sydney Reuben, Assistant Attorney General, with him Anne X. Alpern, Attorney General, for Unemployment Compensation Board of Review, appellee.
Argued April 13, 1961.
The claimant quit her job on May 30, 1959, because she was six and one half-months pregnant. She did not ask for leave of absence or inform her employer, at the time of leaving, of her intention to return to work after the birth of her child. Her child was born on August 24th and on October 9th, she reported to the Bureau of Employment Security and asked for unemployment benefits. She was there notified that she must ask her employer for reinstatement in her former job. She promptly did so, but no work was available for her.
On this state of the record, the board reversed the award to her by the bureau, affirmed by the referee. The board's reasons for denying compensation were that (1) she did not ask for leave of absence and (2) when she again became available for work she reopened her claim for benefits prior to notifying the company that she was available for work.
The claimant appeals on two grounds:
1. The appeal of the employer from the decision of the referee was too late and should have been quashed.
2. The rule disqualifying her because she first went to the board before going to her employer was unreasonable and arbitrary under the circumstances.
1. The act requires that an appeal from the referee to the board be taken within ten days and that limitation has been strictly enforced by this Court. Yet an exception has been made by the board and recognized by this Court where a written notice of intention to appeal is filed within the ten days and the formal petition for appeal is filed thereafter within ten days after the form is mailed by the bureau to the appellant. And it has been held that any letter which indicates a desire for a reconsideration is sufficient as a notice of intention to appeal. Gill Unemployment Compensation Case, 165 Pa. Super. 605, 70 A.2d 422 (1950).
The referee's decision was handed down on December 4, 1959. On or about December 14th the employer wrote to the bureau asking for appeal forms. These were sent out by the board on December 15, 1959. The executed form was not received by the board until December 29th. However, the tenth day, December 25th was Christmas, and on Saturday and Sunday, December 26th and 27th, the bureau was closed. The board in this case has interpreted its own rule to mean that if the envelope bearing the completed appeal form bears a postmark on the tenth day after the form is mailed out it is in time. In this case it concluded that since the tenth day was Christmas which fell on Friday, and that the office was closed on Saturday and Sunday, the appeal was actually mailed out in time on Monday, December 28th although it did not reach the board until December 29th, fourteen days after it had been mailed out. We cannot say that it is error for the board to interpret its own rule to the effect that the mailing is timely if made on the next business day after the tenth day. Cf. Sturzebecker Unemployment Compensation Case, 195 Pa. Super. 164, 169 A.2d 310 (1961).
2. As to the merits, the board found against the claimant because she voluntarily left her employment because of pregnancy of six and one half months and did not request a leave of absence and when she again became available for work she made her claim for benefits without previously notifying her former employer or requesting reinstatement. The facts found are supported by the evidence and we are bound by them. The board concluded from these facts that the applicant had voluntarily left her employment without cause of necessitous and compelling nature.
This case falls within the rule laid down by the Court in Flannick Unemployment Compensation Case, 168 Pa. Super. 606, 82 A.2d 671 (1951). In that case Judge RENO said (at p. 610):
". . . where an employe leaves employment because of a temporary disability with the expectation of later returning to work he is required to apply for a leave of absence, give a timely notice, or otherwise manifest an intention not to abandon the labor force. This is especially applicable where the leaving is an equivocal act, as where a pregnant woman leaves her employment and the leaving can be construed either as a temporary absence or an abandonment of the labor force."
In that case, the "claimant voluntarily left her employment on December 31, 1949 because of pregnancy. She did not request a leave of absence nor did she return to her former employer in an effort to be reinstated when she was again available for work, after the birth of her baby on April 24, 1950. She registered for work on May 26, 1950".
The decision in Flannick Unemployment Compensation Case, supra, affirming the board's denial of compensation, governs here.
Decision affirmed.