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MEDICAL COLLEGE PENNSYLVANIA v. COMMONWEALTH PENNSYLVANIA (06/02/81)

decided: June 2, 1981.

MEDICAL COLLEGE OF PENNSYLVANIA, 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 Vivien McCarthy, No. B-183342.

COUNSEL

Robert H. Young, Jr., Drinker, Biddle & Reath, for petitioner.

Stephen B. Lipson, Assistant Attorney General, with him Richard Wagner, Chief Counsel, and Harvey Bartle, III, Attorney General, for respondent.

Judges Rogers, MacPhail and Palladino, sitting as a panel of three. Opinion by Judge MacPhail. Judge Wilkinson, Jr. did not participate in the decision in this case.

Author: Macphail

[ 59 Pa. Commw. Page 412]

Vivien McCarthy (Claimant) was discharged by the Medical College of Pennsylvania (Employer) for falsifying institutional payroll records. She applied for unemployment compensation benefits and was denied the same by the Bureau (now Office) of Employment Security (Office) because of willful misconduct.*fn1

Claimant appealed, whereupon a hearing was fixed by the referee for March 19, 1980 and due notice thereof was sent to Claimant and Employer. Employer's brief states that they received notice of the hearing on March 13, 1980 and that "sometime thereafter" an office employee called the referee to ask for a continuance because a Mr. Huebner, the person with first hand knowledge of the circumstances surrounding Claimant's discharge would be out of the country. The brief states that the referee told the caller that a continuance would not be granted unless Employer contacted Claimant and obtained her consent to it. Employer did nothing further and did not appear at the referee's hearing.

At the hearing, based upon Claimant's testimony and the exhibits from the proceedings at the Office and since Employer bore the burden of proving willful misconduct which the referee held not to have been sustained, benefits were granted to Claimant. Employer filed a notice of appeal with the Unemployment Compensation Board of Review (Board) which said simply, "We wish to appeal the decision made on the above former employee. The date of the hearing was March 19." The Board denied the appeal and affirmed the grant of benefits.

Employer then sent a letter to the Board requesting reconsideration and setting forth the circumstances

[ 59 Pa. Commw. Page 413]

    relating to their previous request for a continuance of the referee's hearing. The Board denied the request for reconsideration and this appeal followed.

Employer contends here that the referee's denial of the continuance, the Board's denial of the appeal from the referee's decision and the Board's denial of reconsideration were in error.

Obviously, the greatest difficulty we have in this appeal is the fact that we have nothing on the record regarding the Employer's alleged request for continuance and the referee's denial thereof except Employer's letter after the Board's denial of the appeal from ...


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