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PEGGY L. GILBERT v. COMMONWEALTH PENNSYLVANIA (07/09/81)

decided: July 9, 1981.

PEGGY L. GILBERT, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeal from the Order of the Unemployment Compensation Board of Review in the case of In Re: Claim of Peggy Gilbert, No. B-169079.

COUNSEL

Charles R. Rosalimia, Jr., for petitioner.

Francine Ostrovsky, Assistant Attorney General, with her James K. Bradley, Assistant Attorney General, Richard Wagner, Chief Counsel, and Harvey Bartle, III, Acting Attorney General, for respondent.

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

Author: Palladino

[ 60 Pa. Commw. Page 447]

Peggy Gilbert (Claimant) appeals here from a decision and order of the Unemployment Compensation Board of Review (Board) which affirmed a referee's denial of unemployment compensation benefits pursuant to Section 402(e) of the Unemployment Compensation Law (Law),*fn1 the willful misconduct provision. Since additional findings of fact must be made to enable us to resolve the legal issue raised in this appeal, we will remand.

On October 20, 1978, Claimant was fired from her job as a $2.65 per hour waitress for a McDonald's restaurant (McDonald's), and subsequently filed an application

[ 60 Pa. Commw. Page 448]

    for unemployment compensation benefits with the Bureau, now Office, of Employment Security (Bureau). The Bureau initially determined that Claimant was eligible for benefits, and McDonald's appealed. Following a hearing, the referee concluded that Claimant had been dismissed for willful misconduct, and reversed the Bureau's award of benefits. Thereafter, the Board issued an order disallowing further appeal pursuant to Section 502 of the Law, 43 P.S. ยง 822, and Claimant filed an appeal to this Court. By an order dated July 19, 1979, we remanded this case pursuant to an Application for Remission of Record filed by the Board, and a remand hearing was subsequently conducted on September 5, 1979. From the evidence adduced at that hearing, the Board made the following pertinent findings of fact:

2. The claimant had been warned on June 1, 1978 and September 1, 1978 about offensive body odor and customer complaints regarding same.

3. The claimant informed the employer and asserts that the body odor is due to medical reasons.

4. The employer instructed the claimant to provide medical certification concerning the ...


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