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ANTHONY W. KIRK v. COMMONWEALTH PENNSYLVANIA (03/31/82)

decided: March 31, 1982.

ANTHONY W. KIRK, 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 Anthony Wayne Kirk, No. B-189005.

COUNSEL

John J. Walder, with him Richard M. Connelly, and William Shimer, Jr., for petitioner.

Francine Ostrovsky, Associate Counsel, with her Joseph F. Bewick, Associate Counsel, and Richard L. Cole, Jr., Chief Counsel, for respondent.

Judges Rogers, MacPhail and Doyle, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 65 Pa. Commw. Page 546]

Anthony W. Kirk (Claimant) appeals here from a denial of unemployment compensation benefits by the Unemployment Compensation Board of Review, which affirmed a referee's decision disqualifying him under Section 402(b)(1)*fn1 of the Unemployment Compensation Law (Act), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b)(1), on the ground that he voluntarily terminated his employment.

[ 65 Pa. Commw. Page 547]

Claimant had been earning $9.60 per hour as a tire curer for Firestone Tire and Rubber Co., when on February 8, 1980, he was laid off. He had been with Firestone for over seven years.

One week after Firestone laid off Claimant he applied for a job with Pottstown Memorial Medical Center (Employer). A few months later Claimant was hired as a cook at a pay rate of $5.35 per hour. Although his work was to begin on Monday, July 14, 1980, Claimant was also required to report for orientation on Friday, July 11, 1980. At orientation, Claimant was informed by the head dietician that he would be paid $5.12 per hour and that he was responsible for purchasing and cleaning his own uniforms. Instead of reporting for work on July 14, Claimant called the personnel office and said he was not going to report for work because the pay was insufficient. Claimant never inquired at the personnel office whether the correct wage was $5.35 per hour or $5.12 per hour and did not discuss the uniform issue. Claimant testified that he was told he would be paid for attending the orientation session but as of the date of the referee's hearing, he had not been paid.

In his argument to this Court, Claimant contends that the only evidence on the part of the Employer was a notation on Claimant's UC-100 card prepared by the Office of Employment Security. It is true that Employer did not attend the hearing and that Claimant's counsel objected to the admission of the UC-100 card as hearsay. Since, however, the disputed notation was not referred to by the referee or the Board in their findings or conclusions and does not form the basis for any of those findings or conclusions there has been no harm or prejudice to the Claimant by reason of the admission of the exhibit. All of the Board's findings are fully supported in this case from Claimant's own testimony.

[ 65 Pa. Commw. Page 548]

Claimant's principal argument is that he was never employed by Employer. Claimant contends that he never accepted employment even though he was given a starting date and even though he admits that he attended the orientation session and was told at that session that he would be paid for attending. It is certainly true that unless an employment relationship existed, there could be no termination of employment, voluntary or otherwise. Williams v. Unemployment Compensation Board of Review, 61 Pa. Commonwealth Ct. 613, 434 A.2d 883 (1981). The facts in the instant case, however, are easily distinguished from those in Williams. Section 4 of the Act, 43 P.S. § 753 provides the following definitions:

(i) 'Employe' means every individual . . . who is performing or . . . has performed services for an employer in an ...


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