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BRENDA LOWE v. COMMONWEALTH PENNSYLVANIA (05/26/83)

decided: May 26, 1983.

BRENDA LOWE, 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 Brenda Lowe, No. B-181147-B.

COUNSEL

Oscar N. Gaskins, Gaskins & McCaskill, P.C., for petitioner.

Francine Ostrovsky, Associate Counsel, with her Richard L. Cole, Jr., Chief Counsel, for respondent.

Judges Rogers, Williams, Jr. and Craig, sitting as a panel of three. Opinion by Judge Williams, Jr.

Author: Williams

[ 74 Pa. Commw. Page 486]

Brenda Lowe appeals from the order of the Unemployment Compensation Board of Review denying unemployment compensation benefits on the basis of Section 402(e) of the Unemployment Compensation Law.*fn1 The Board found that the claimant engaged in insubordination, and that such behavior constituted

[ 74 Pa. Commw. Page 487]

    willful misconduct under the Law. The claimant contends that the Board's findings of insubordination are not supported by competent evidence, and that the record taken as a whole does not support a legal conclusion that she engaged in willful misconduct. For the reasons which follow, we affirm the denial of benefits.

This case has a labyrinthine procedural history. The claimant applied for benefits on July 19, 1978. The Bureau of Employment Security (BES) denied benefits pursuant to Section 402(e). The claimant appealed BES's determination, and after a hearing held on August 21, 1978, an unemployment compensation referee reversed the denial of benefits. The employer filed a timely appeal to the Board. On the basis of minor discrepancies between two different transcripts which were made of the referee's hearing, the Board, on February 1, 1979, ordered a hearing de novo before a new referee. Despite the Board's directive for a hearing de novo, the referee, at a hearing held on October 5, 1979, took testimony to augment the original record in the case. When the referee announced that the hearing would not be de novo, the claimant and her attorney left the hearing without presenting any testimony. The referee proceeded to take testimony from the employer's witnesses. The additional testimony was forwarded to the Board, which on February 21, 1980, reversed the decision of the referee and denied benefits. The claimant timely appealed to this court from the Board's decision.

Pursuant to a petition by the Board and a stipulation between counsel for the Board and counsel for the claimant, this court, on September 3, 1980, remanded the record in the case for purposes of scheduling a hearing before a referee who would render a new decision pursuant to 34 Pa. Code ยง 101.108(b).

[ 74 Pa. Commw. Page 488]

The order specifically allowed the claimant to take further appeals should she disagree with the new decision of the referee or of the Board.

The Board, on September 19, 1980, issued an order remanding the case to a referee with no prior knowledge of the case. The referee was directed to schedule a further hearing, take additional testimony, and render a new decision. Accordingly, a hearing was held on November 6, 1980, at which time both the claimant and employer appeared and presented evidence. Both parties were represented. By a decision dated December 3, 1980, the referee denied benefits on the ground that the claimant engaged in willful misconduct. A ...


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