Opinion
Argued October 7, 1977
February 15, 1978.
Unemployment compensation — Scope of appellate review — Error of law — Findings of fact — Sufficient evidence — Voluntary termination — Cause of a necessitous and compelling nature — Burden of proof — Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897 — Health problems — Effort to preserve employment.
1. In an unemployment compensation case review by the Commonwealth Court of Pennsylvania is limited to questions of law and a determination of whether necessary findings of fact are supported by the evidence. [603]
2. 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. [603]
3. Health problems can constitute a compelling and necessitous reason for leaving employment when evidence establishes a physical or emotional inability to continue working. [604]
4. An employe terminating employment because of health problems or intolerable working conditions is nonetheless ineligible for unemployment compensation benefits when the employe refused to take a leave of absence conditioned on a modification of her job when she returned and thus failed to make a reasonable effort to preserve her employment. [604]
Argued October 7, 1977, before Judges ROGERS and BLATT, sitting as a panel of two.
Appeal, No. 1749 C.D. 1976, from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Rebecca Pfeffer, No. B-133-253.
Application to Bureau of Employment Security for unemployment compensation benefits. Application denied. Applicant appealed to the Unemployment Compensation Board of Review. Denial affirmed. Applicant filed petition for review with the Commonwealth Court of Pennsylvania. Held: Affirmed.
David Ferleger, for petitioner.
Susan Shinkman, Assistant Attorney General, with her George O. Phillips, Assistant Attorney General, and Robert P. Kane, Attorney General, for respondent.
Rebecca Pfeffer (claimant) appeals from an order of the Unemployment Compensation Board of Review (Board) which affirmed the referee's denial of unemployment compensation. Both the referee and the Board concluded that she was disqualified from receiving benefits under the provisions of Section 402(b)(1) of the Unemployment Compensation Law (Law) because she voluntarily left work without cause of a necessitous and compelling nature.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P. S. § 802(b)(1).
The claimant had been employed as a sample maker at Alper Schwartz Company until December 16, 1975, her last day of work. For two days prior to her leaving, she had complained to her supervisor about Christmas organ music which was being played by a co-worker on a tape recorder located several feet from where the claimant was working. She objected to the volume of the tape recorder and to the repetition of the same tape for four of the seven working hours. She testified that she had told her supervisor that the music made her very nervous and that she had asked that it be turned off or that she be permitted to move to another location. These requests were denied, and she testified that other workers who wanted the music to continue became hostile. When the music continued, she asked that she be given time off until after Christmas, but the supervisor informed her that if she chose to leave she would be placed on piece work when she returned. She did not report to work after December 16, 1975.
In unemployment compensation cases, our scope of review is limited to questions of law and, absent fraud, to a determination of whether or not necessary findings of fact are supported by the evidence. Section 510 of the Law, 43 P. S. § 830. The claimant here, of course, has the burden of showing that her voluntary termination was with cause of a necessitous and compelling nature, Pfafman v. Unemployment Compensation Board of Review, 7 Pa. Commw. 197, 300 A.2d 295 (1973), and her principal contention is that the repetitious playing of the Christmas music had such an adverse effect on her mental and physical health that she had a compelling and necessitous reason for leaving her job.
Health problems may, in some circumstances, constitute a compelling and necessitous reason for leaving employment if the claimant produces competent testimony that at the time of his termination he was physically or emotionally unable to continue working. Deiss v. Unemployment Compensation Board of Review, ___ Pa. ___, 381 A.2d 132 (1977). Here, however, the claimant's case does not turn on the existence of such evidence in the present record nor on her argument that a remand is necessary to enable her to present additional evidence regarding her psychiatric history. The determinative factor is that she could have taken a leave of absence until after the Christmas season if she had been willing to accept piece work upon her return. The Board specifically found that "she did not attempt to return to work after the holiday season in order to resume her employment on a piece work basis," and this crucial finding is supported by the claimant's own testimony. Even though a claimant may have properly established that a physical or emotional condition prevented continuing at his present work, he must also show that he has made a reasonable effort to preserve his employment and that he has no real choice but to leave. Unemployment Compensation Board of Review v. Kapsch, 18 Pa. Commw. 456, 336 A.2d 652 (1975).
We can understand the claimant's attempt to escape from what she believed to be intolerable working conditions, but when she refused to take a leave of absence conditioned upon a modification of her job at the time she returned, she did not make the kind of reasonable effort to preserve her employment which the law requires of her. The Board committed no error of law in affirming the referee's denial of benefits, and we must, therefore, affirm the Board's decision to deny benefits.
ORDER
AND NOW, this 15th day of February, 1978, the order of the Unemployment Compensation Board of Review is hereby affirmed.