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LIPSHUTZ v. UNEMPLOYMENT COMPENSATION BOARD REVIEW (04/05/73)

decided: April 5, 1973.

LIPSHUTZ
v.
UNEMPLOYMENT COMPENSATION BOARD OF REVIEW



Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Catherine F. Lipshutz, No. B-113140.

COUNSEL

Raymond J. Porreca, for appellant.

Sydney Reuben, Assistant Attorney General, with him J. Shane Creamer, Attorney General, for appellee.

Judges Crumlish, Jr., Mencer and Rogers, sitting as a panel of three. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 8 Pa. Commw. Page 257]

In this appeal we are to determine whether it was proper for the Unemployment Compensation Board of

[ 8 Pa. Commw. Page 258]

Review to conclude that claimant's employment was terminated as a result of her own wilful misconduct.

Claimant, a long time employee of Frank's Beverages, was entitled under her work arrangement to two weeks paid vacation in 1971. She notified her employer, Mr. Frank, in May of 1971 that she wanted to take her vacation beginning August 9, 1971. The parties differ in their versions of what transpired. Claimant alleges that her employer never disapproved this request, that he gave her a check for her vacation period in advance and that he never told her that she would forfeit her job if she took her vacation at that time.

The employer's version contended that requested vacation period was never approved but specifically was disapproved because he needed her during the usually busy summer season. The employer contended also that Mrs. Lipshutz was advised that if she left she would forfeit her job. These allegations were elicited solely from the testimony of the employer's general manager. He testified that he had overheard a conversation between the employer and claimant and that the company records indicated that she left voluntarily.

The Board found as a fact that claimant's request had been denied and her subsequent absence from work during that two week period constituted wilful misconduct. Accordingly, she was denied benefits under ยง 402(e) of the Unemployment Compensation Law.*fn1

We hold that the Board erred and that the case must be remanded for further hearings because the employer did not testify and because the findings of the Board relied on hearsay testimony.

The work relationship which existed here was to a great extent determined by the personal interaction between claimant ...


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