Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Deborah A. Garrett, No. B-170796-B.
John J. Connors, Jr., for petitioner.
William J. Kennedy, Assistant Attorney General, with him Richard Wagner, Chief Counsel, and Harvey Bartle, III, Acting Attorney General, for respondent.
Judges Wilkinson, Jr., Williams, Jr. and Palladino, sitting as a panel of three. Opinion by Judge Palladino.
[ 57 Pa. Commw. Page 583]
Petitioner, an employer, appeals the June 13, 1979, order of the Unemployment Compensation Board of Review (Board) which affirmed a referee's decision granting unemployment compensation benefits to Claimant, Petitioner's former employee.
[ 57 Pa. Commw. Page 584]
On March 10, 1978, Petitioner hired Claimant as an office assistant and told Claimant that her starting time was 8:30 a.m. Petitioner then put Claimant under the direction of an office worker who appeared to be the office manager and who advised Claimant to report to work between 8:45 a.m. and 9:00 a.m. Claimant signed the office time sheets accordingly, and the sheets were received by Petitioner. At approximately 8:20 a.m. on July 10, 1978, Claimant received a hysterical telephone call from her sister, indicating that the sister's son was injured in an accident and was in critical condition. As a result of this call Claimant arrived at work at approximately 8:45 a.m. Petitioner requested an explanation for Claimant's tardiness and then warned Claimant either to report to work at 8:30 a.m. or to notify Petitioner in advance of any future lateness. On the morning of July 11, 1978, Claimant again received a hysterical telephone call from her sister, this time indicating that the sister's son had suffered cardiac arrest. As a result of this call Claimant arrived at work between 8:45 a.m. and 9:00 a.m. without having previously notified Petitioner of her late arrival. Claimant worked until approximately noon at which time Petitioner questioned Claimant's late arrival, and Claimant explained her family emergency. At this point Petitioner made a statement to Claimant, which statement is the subject of this appeal.
Petitioner asserts that on July 11, 1978, Petitioner warned Claimant not to continue arriving to work late without giving Petitioner prior notice of tardiness. Allegedly, Petitioner stated, "If you are going to be late without notification beforehand, please don't come any more." Claimant contends that on July 11, 1978, Petitioner fired Claimant despite Claimant's having told Petitioner of Claimant's family medical emergency. Allegedly, Petitioner said Claimant should never come back to the office.
[ 57 Pa. Commw. Page 585]
Following Petitioner's disputed statement to Claimant, Claimant finished her office work, left the office, and did not return to the office after the lunch period.
The Bureau of Employment Security deemed Claimant ineligible for benefits under Section 402(b)(1) of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b)(1), for having voluntarily terminated her employment with Petitioner without cause of a necessitous and compelling nature. Following Claimant's appeal and a hearing, the referee held that Claimant was discharged from her employment and was, in the absence of willful misconduct, entitled to benefits under Section 402(e) of the Law, 43 P.S. § 802(e). Upon Petitioner's appeal, the Board reversed the referee's decision and ruled that under Section 402(b)(1) of the Law Claimant could not receive benefits because she had voluntarily quit without cause. Upon Claimant's request for reconsideration, the Board concluded on June 13, 1979, that Claimant was involuntarily separated from her employment but was not discharged for willful misconduct. Therefore, the Board held that Claimant was entitled to benefits under Section 402(e) of the Law. Petitioner now appeals the June 13, 1979, decision of the Board.
Whether Claimant voluntarily terminated her employment with Petitioner is a question of law subject to review by this Court and dependent upon the facts found by the compensation authorities. Taylor v. Unemployment Compensation Board of Review, 49 Pa. Commonwealth Ct. 59, 410 A.2d 400 (1980); Bowman v. Unemployment Compensation Board of Review, 49 Pa. Commonwealth Ct. 170, 410 A.2d 422 (1980); ...