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KENTUCKY FRIED CHICKEN ALTOONA v. UNEMPLOYMENT COMPENSATION BOARD REVIEW (09/07/73)

decided: September 7, 1973.

KENTUCKY FRIED CHICKEN OF ALTOONA, INC., APPELLANT,
v.
UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, APPELLEE



Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Ronald R. Crist, No. 71-6-A-219.

COUNSEL

Benjamin I. Levine, Jr., with him Nelson, Campbell & Levine, for appellant.

Sydney Reuben, Assistant Attorney General, with him Israel Packel, Attorney General, for appellee.

Judges Kramer, Mencer and Blatt, sitting as a panel of three. Opinion by Judge Kramer.

Author: Kramer

[ 10 Pa. Commw. Page 92]

This is an appeal filed by Kentucky Fried Chicken of Altoona, Inc. (Kentucky) from an order of the Unemployment Compensation Board of Review (Board) awarding compensation to Ronald Richard Crist (Crist).

Crist began working for Kentucky in December of 1963. Save for the time he served in the military, his employment was continuous until the date of his termination, September 25, 1971. He had been manager of one of Kentucky's restaurants from June, 1970. For approximately one and one-half months before his termination, Crist had been working seven days a week, nine hours a day. Kentucky stated that Crist's employment was terminated because he was not always present during the supper rush, and he failed to keep a schedule of the amount of chicken to be kept on hand at any given period. Kentucky asserts that the latter reason precipitated a lack of sufficient chicken on Labor Day, 1971. Crist proffers that business was slow just prior to the holiday, and that therefore he underestimated the amount necessary.

Crist applied for unemployment compensation benefits, which application was denied by the Bureau of Employment Security. The Bureau determined that Crist was not entitled to benefits because his behavior

[ 10 Pa. Commw. Page 93]

    constituted wilful misconduct. Crist appealed, and a hearing was held; after which, the referee concluded that Crist was ineligible for benefits for the same reason, i.e., wilful misconduct. Crist appealed to the Board, and on January 17, 1972, the Board affirmed the referee. On January 21, 1972, the Board, on its own motion, vacated its prior order. On March 22, 1972, the Board issued a new order (reversing its prior order), in which it concluded that Crist was not guilty of wilful misconduct and that he was entitled to benefits. Kentucky has appealed from the second order to this Court.

In unemployment compensation cases, our scope of review, absent fraud, is limited to (1) a determination as to whether the Board's findings are supported by the evidence, and (2) questions of law. See James v. Unemployment Compensation Board of Review, 6 Pa. Commonwealth Ct. 489, 296 A.2d 288 (1972).

In this appeal, two issues are before this Court. The first evolves from the procedural format followed by the Board. The question presented is whether the Board on its own motion, absent a petition for rehearing or reconsideration, and without further opportunity to be heard having been granted the parties, could vacate its first order and issue a second order which in essence reverses the initial order. The second issue before the Court queries whether Crist's behavior constituted wilful misconduct under Section 402(e) of the Unemployment Compensation Act, Act of December 5, 1936, P.L. (1937) 2897, as amended, 43 P.S. § 802(e), and whether such behavior barred the awarding of unemployment compensation benefits.

We shall address ourselves to the first issue at this time. Section 509 of the Act, 43 P.S. § 829 provides that Board orders become final ten days after issuance. The Board apparently relies on this section to support ...


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