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MARGARET MILLER v. UNEMPLOYMENT COMPENSATION BOARD REVIEW COMMONWEALTH PENNSYLVANIA (04/14/77)

decided: April 14, 1977.

MARGARET MILLER, PETITIONER
v.
UNEMPLOYMENT COMPENSATION BOARD OF REVIEW OF THE COMMONWEALTH OF PENNSYLVANIA, RESPONDENT



Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Margaret Miller, No. B-132106.

COUNSEL

Margaret Miller, appellant, for herself.

Daniel R. Schuckers, Assistant Attorney General, with him Sydney Reuben, Assistant Attorney General, and Robert P. Kane, Attorney General, for appellee.

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

Author: Rogers

[ 29 Pa. Commw. Page 542]

Margaret Miller applied for unemployment compensation benefits under the Special Unemployment Assistance Program,*fn1 a federal program designed to implement state unemployment benefits. In order to qualify for the program, the applicant must meet the qualifying employment and wage requirements of her state's unemployment compensation law. In this case, the Unemployment Compensation Board of Review, affirming a referee, denied claimant benefits because the claimant had quit a position of employment causing her disqualification under Section 402(b)(1) of the Unemployment Compensation Law (Law), Act of December 5, 1936, P.L. [1937] 2897, as amended, 43 P.S. § 802(b)(1), and had failed to prove sufficient earnings from subsequent work to requalify under Section 401(f), 43 P.S. § 801(f). The claimant has now appealed to this Court.

Section 402(b)(1), 43 P.S. § 802(b)(1), makes an employe who voluntarily quits work without cause of a necessitous and compelling nature ineligible for compensation. This disqualification can be "purged" under Section 401(f) of the Law, 43 P.S. § 801(f), which states in pertinent part:

[ 29 Pa. Commw. Page 543]

Compensation shall be payable to any employe who is or becomes unemployed, and who --

(f) Has earned, subsequent to his separation from work under circumstances which are disqualifying under the provisions of subsections 402(b), 402(e) and 402(h) of the Act, remuneration for services in an amount equal to or in excess of six (6) times his weekly benefit rate . . . .

Claimant's pertinent work history, as found by the Board, was as follows: Claimant was employed as a waitress by the Holiday House Restaurant in Monroeville, Pennsylvania, from November 3, 1974 until December 1, 1974, on which latter date she voluntarily quit. She was then employed by Esta Esta Restaurant also in Monroeville from December 28, 1974 until January 27, 1975, when she was laid off due to a decrease in business at the restaurant. In order to qualify for unemployment compensation the claimant would have to have earned at Esta Esta an amount equal to or more than six times her weekly benefit rate of $86.00, or $516.00. She testified that she earned $120.26 in wages and more than $400 in tips. The Board did not believe she made the difference between $120.26 and $516 in tips.

Claimant argues on this appeal (1) that the transcript of testimony before the referee was so inadequate that the Board did not receive an accurate explanation of the issues, and (2) that the Board's finding that she did not earn six times her weekly benefit rate while employed by Esta Esta Restaurant is inaccurate and not supported by the evidence.

With regard to the alleged inadequate transcript, we note that there were two hearings and a transcript of each. The Board ...


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