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1030 NORTH WEST END BOULEVARD v. COMMONWEALTH PENNSYLVANIA (07/31/80)

decided: July 31, 1980.

1030 NORTH WEST END BOULEVARD, INC., TRADING AS BENETZ INN, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Jill M. Crum, No. B-171628.

COUNSEL

Richard Brown, with him Kevin T. Keane, McQuiddy & Brown, P.C., for petitioner.

John Kupchinsky, Assistant Attorney General, with him Richard Wagner, Chief Counsel and Edward G. Biester, Jr., Attorney General, for respondent.

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

Author: Mencer

[ 53 Pa. Commw. Page 3151030]

North West End Boulevard, Inc., trading as Benetz Inn (Benetz) appeals from an order of the Unemployment Compensation Board of Review (Board), which reversed a referee's decision denying benefits to Jill M. Crum (claimant). We affirm the Board.

The facts are undisputed. Claimant was employed by Benetz as a cook, and her last day of work with Benetz was November 30, 1978. On or about October 15, 1978, claimant informed Benetz that she and a co-worker planned to open and operate the Chestnut Hill Inn sometime in the future and that, as soon as she knew for sure, she would give Benetz two weeks' notice of her leaving. In order to have continuity of the services of a trained staff, Benetz began to hire and train a replacement for claimant. On November 30, 1978, claimant was advised by Benetz that her replacement was ready to assume her duties and that, therefore, as of December 1, 1978, claimant's services were no longer required.

The Bureau (now Office) of Employment Security denied benefits because claimant voluntarily terminated her employment and was, therefore, ineligible for benefits under Section 402(b)(1) of the Unemployment Compensation Law (Act), Act of December 5,

[ 53 Pa. Commw. Page 3161936]

, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b)(1). The referee affirmed. The Board, however, characterizing the separation as a discharge, reversed the referee and granted benefits on the ground that Benetz had not sustained its burden of proving willful misconduct under Section 402(e) of the Act, 43 P.S. § 802(e). This appeal followed.

Benetz argues that our decision in Lovrekovic v. Unemployment Compensation Board of Review, 36 Pa. Commonwealth Ct. 364, 387 A.2d 685 (1978), is indistinguishable from the instant case and is, therefore, controlling. We disagree.

In Lovrekovic, the claimant advised his employer that he was looking for other work. At the time, claimant had no definite offer of work with any other employer. His employer hired a replacement, and, when the replacement was fully trained, the employer discharged the claimant. Our Court ruled that the employee had voluntarily terminated his employment.

Here, however, claimant qualified her notice with the proviso that she would serve two weeks' notice prior to her leaving. We do not believe that claimant's statement "set off the chain of events that led to [her] unemployment and was thus its factual cause." Lovrekovic, supra, 36 Pa. Commonwealth Ct. at 367, 387 A.2d at 686. Rather, we believe that the precipitating event would be service of the two-week notice to Benetz. While the claimant in Lovrekovic alerted his employer that he would be leaving at ...


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