Opinion

Erie Resistor Corp. v. Unemployment Compensation Board of Review

  • 185 Pa. Super. 240
  • 138 A.2d 229
Court
Superior Court of Pennsylvania
Filed
Jan 21, 1958
Status
Published
Author
Weight
On the bench
Ervin, Gunther, Hirt, Rhodes, Watkins, Weight, Woodside, Wright
Cited by
2 cases
Authority
More cited than 7.4%

The opinion

Dissenting Opinion by

Weight, J.:

For a number of years Mrs. Georgia Bemis Bogan was a faithful employe of the Erie Besistor Corporation, working on the afternoon shift. She became pregnant early in October, 1958 1 . On November 21, 1956, Mrs. Bogan was informed that she was being *244 transferred to the morning shift. She protested the transfer because she was suffering from morning sickness due to her pregnant condition. We should certainly not be unmindful of the frequent occurrence of morning sickness in the early stages of pregnancy. In fact, Mrs. Rogan produced a certificate from her physician in which it was recommended that she be given work on the afternoon shift. She desired to continue working for several more months, and was fully capable of performing her duties on either the afternoon or the night shift. Since the employer insisted that she must work on the morning shift or take a maternity leave, Mrs. Rogan was forced to accept a leave at an earlier date than ordinarily required. Her claim is only for the intervening period, not for the entire duration of her pregnancy.

The compensation authorities found as a fact that Mrs. Rogan’s temporary refusal to accept work on the morning shift was based on “a compelling and necessitous reason”. This finding was fully supported by the evidence. The cases cited by the majority have no application in the present factual situation. The Sturdevani case dealt with the problem of a married woman leaving work to join her husband. In the Miller case the claimant was entirely unable to work, whereas in the case at bar Mrs. Rogan could work on either the afternoon or the night shift. In the Antinopoulas case we remanded the record and, by an opinion filed this day in that case, we have affirmed the award of benefits.

In unemployment compensation cases the determination of the condition of health of the employe and of the suitability of the work offered, considering the status of health, are questions of fact, findings as to which cannot be disturbed by the appellate court if they áre supported by the evidence: Rosell Unemploy *245 ment Compensation Case, 184 Pa. Superior Ct. 556 , 135 A. 2d 769 . The instant situation is the converse of that in the Rosell case and, by necessary implication, is controlled by our unanimous opinion in that case. Since I feel very strongly that the decision of the Board of Review should be affirmed, I am obliged to dissent.

We have ascertained that the baby was born on July 6, 1957.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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