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ASTRO WAREHOUSING v. COMMONWEALTH PENNSYLVANIA (06/15/83)

decided: June 15, 1983.

ASTRO WAREHOUSING, INC., 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 Delphine Kalinowski, No. B-201577.

COUNSEL

Thomas I. Vanaski, Dilworth, Paxson, Kalish & Kauffman, for petitioner.

John T. Kupchinsky, Associate Counsel, with him Richard L. Cole, Jr., Chief Counsel, for respondent.

Judges Blatt, MacPhail and Barbieri, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 75 Pa. Commw. Page 127]

Astro Warehousing, Inc. (Employer) has brought this appeal from an order of the Unemployment Compensation Board of Review (Board) which affirmed a referee's decision granting benefits to Delphine Kalinowski (Claimant).

Claimant was last employed as an office manager for Employer. Claimant had worked for Employer for ten years and had been employed as an office manager for seven years. On June 16, 1981, Claimant came to work approximately an hour and a half early with the expectation that she would leave work for a time during the day. Claimant did leave work for three hours beginning about noon. Claimant did not inform anyone else in a superior managerial position that she was going to take time off from work during the day. Claimant did punch out her time card when she left and punched in upon her return. Claimant was discharged on July 3, 1981.

Several testimonial conflicts arose during the referee's hearing on this matter. First of all, it was Claimant's contention that, as an Office Manager, she was not required to, and had never previously, sought permission from anyone else in management to take time off during the day and that the only person she would inform was the Assistant Office Manager, who was told where Claimant was going and where Claimant

[ 75 Pa. Commw. Page 128]

    could be reached. The Employer*fn1 asserted, however, that Claimant was required to contact the company president, who was admittedly out of town at the time, or other designated managerial employees*fn2 located in a different building from Claimant's place of employment to obtain permission to leave work for a personal reason.

The other conflict in the testimony concerned Claimant's reason for leaving work. Claimant testified that she left work in order to visit her father-in-law in the intensive care unit of a local hospital.*fn3 Employer presented uncorroborated hearsay testimony that Claimant left work to go swimming.

In both instances the Board chose to accept Claimant's version of events. The Board then concluded that Claimant's actions did not rise to the level of disqualifying willful misconduct under the provisions of Section 402(e) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. ยง 802(e), and thus granted Claimant benefits.

Concerning the Board's resolution of the conflicting testimony in Claimant's favor, such an action is clearly within the Board's prerogative as factfinder and cannot be classified as capricious disregard of the evidence. See Grzech v. Unemployment Compensation Board of Review, 56 Pa. Commonwealth Ct. ...


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