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GAIL E. DRUZAK v. COMMONWEALTH PENNSYLVANIA (03/08/74)

decided: March 8, 1974.

GAIL E. DRUZAK, APPELLANT,
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, APPELLEE



Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Gail E. Druzak, No. B-117661.

COUNSEL

Neal E. Newman, with him Irwin S. Lasky, for appellant.

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

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

Author: Wilkinson

[ 12 Pa. Commw. Page 482]

From May until November 18, 1972 appellant was employed as a sales person and assistant manager of a retail store in the Neshaminy Shopping Mall, Cornwells Heights, Pa. When she was employed she was told, according to her own testimony, that she was to work "Approximately a 40 hour week. Either 10 to 6 or 1 to 9:30." The evidence indicates she usually worked 3 days on the 1 to 9:30 schedule and 2 days on the 10 to 6. She had 1/2 hour off for lunch. She was paid $85.00 a week to start and received a $10.00 a week raise during the period, making $95.00 a week at the time of her termination.

Just prior to Thanksgiving her employer notified her that during the period between Thanksgiving and Christmas the rules of the Mall required that the store remain open until 10 o'clock. Under the schedule she usually worked, this would add 1 1/2 hours to her week. Allowing for 1/2 hour for lunch, this would make a 40 1/2 hour week during the month of December, whereas the 11 other months of the year she would be working a 39-hour week. She testified she was perfectly willing to do it, that there were no personal reasons that she did not want to work, she did not have any home obligations, and that the place of business was "just a few minutes" away from where she lived. The only reason that she had for refusing to work what she considered to be an extra 1 1/2 hour a week was that she was not being paid for it.

Again, from appellant's testimony, when she refused to work the additional time without additional compensation, her employer told her: "He said well we will just have to let you go then because, you know, if you don't work, then nobody else will." Therefore, it

[ 12 Pa. Commw. Page 483]

    must have been quite apparent to appellant that she was being treated in the same manner as all the other employees in the store, even though she was in a supervisory capacity as assistant manager.

Appellant was denied unemployment compensation by the Bureau, the Referee, and the Board for the same reason, i.e., Section 402(e) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess. P.L. (1937) 2897, as amended, 43 P.S. ยง 802(e) which provides:

"An employe shall be ineligible for compensation for any week --

"(e) In which his unemployment is due to his discharge or temporary suspension from work for wilful misconduct ...


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