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ROSEMARY DUDASH v. COMMONWEALTH PENNSYLVANIA (07/30/81)

decided: July 30, 1981.

ROSEMARY DUDASH, 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 Rosemary Dudash, No. B-176252-B.

COUNSEL

Margaret Duffy Lenns, with her Randy A. Hummel, for petitioner.

Karen Durkin, Assistant Attorney General, with her Steven R. Marcuse, Assistant Attorney General, Richard Wagner, Chief Counsel, and LeRoy S. Zimmerman, Attorney General, for respondent.

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

Author: Macphail

[ 61 Pa. Commw. Page 187]

Rosemary Dudash (Claimant) is appealing an order of the Unemployment Compensation Board of Review (Board) which reversed the referee's decision, and denied Claimant's benefits on the grounds that Claimant was discharged for willful misconduct in connection with her work.*fn1

The Board found as fact that Claimant was last employed by the Butler Garment Company (Employer)

[ 61 Pa. Commw. Page 188]

    working on the automatic presser, from May 1, 1974. Her last day of work was in March of 1979. Thereafter, Claimant was granted medical leave because of an ankle injury. On May 2, 1979, Employer sent Claimant a letter, stating that she must contact Employer within three days or be considered to have voluntarily quit for not reporting back at the expiration of her leave of absence. On or about May 4, 1979, Claimant called Employer as requested and advised Employer's plant manager that she had called before for an extension of her leave. The plant manager felt that his failure to know about her call was not her fault, but was due to a communication problem within the plant which occurred occasionally; thus he granted her an indefinite leave of absence.

The Board further found that on May 14, 1979, Claimant called Employer's plant manager and told him she was ready to report to work. He told her to call later that day to learn if work was available. Claimant called around 3:00 p.m. and the payroll clerk told her to report for work the next morning. Claimant did not report to work the next morning (May 15) or on May 16, May 17, or May 18, 1979; but on May 18, 1979, she called the plant manager and asked if she still had a job. When the plant manager told her she did not have a job, Claimant replied that she had been out of town since Tuesday (May 15) and that someone had reported her absence for her. The plant manager then put her on hold, while he checked his records for such a call. He discovered no record of a call, returned to the phone and found that they had been disconnected. Employer heard nothing more from Claimant and on May 21, 1979, he notified her

[ 61 Pa. Commw. Page 189]

    union that she had been terminated for failing to report to work for four days without notice.*fn2

The burden of proving willful misconduct is on the employer. Gane v. Unemployment Compensation Board of Review, 41 Pa. Commonwealth Ct. 292, 398 A.2d 1110 (1979). Where, as here, the employer prevails before the Board, we must determine on appeal whether an error of law has been committed and whether any necessary finding of fact is unsupported by substantial evidence in the record. ...


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