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BETHANY GOULD v. COMMONWEALTH PENNSYLVANIA (10/17/83)

decided: October 17, 1983.

BETHANY GOULD, 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 Bethany Gould, No. B-156786-G.

COUNSEL

Peter Zurflieh, for petitioner.

Charles G. Hasson, Acting Deputy Chief Counsel, with him, Richard L. Cole, Jr., Chief Counsel, for respondent.

Judges Craig, Barry and Blatt, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 77 Pa. Commw. Page 555]

This unemployment compensation appeal involves a denial of benefits sought by a massage parlor employee who quit in the face of being sentenced for conviction on prostitution charges arising out of the employment.

This case has been moving like a yo-yo between the compensation authorities and this court for five years. We now come to the question of whether a legal basis

[ 77 Pa. Commw. Page 556]

    for unemployment compensation disqualification, different from the basis originally raised, can be determinative where it was raised only by the department on appeal to the board.

If we conclude that the disqualification basis applied here, section 3 of the Unemployment Compensation Law,*fn1 43 P.S. ยง 752, was not waived, then we must finally decide if there is a legal and factual basis to warrant the use of that disqualification in this case.

In Gould v. Unemployment Compensation Board of Review, 60 Pa. Commonwealth Ct. 42, 430 A.2d 731 (1981) (Gould I), Judge Rogers earlier stated the facts of this case. The claimant, Bethany Gould, had been employed as a bookkeeper at the Harrisburg office of the employer Majestic Spa, Inc. At the employer's request, she went to Allentown to manage Majestic's massage parlor there, was convicted of prostitution charges connected with that facility and then returned to her bookkeeping job at the Harrisburg office. On the advice of legal counsel, she quit the employment to improve her position when she faced sentencing.

The office of Employment Security (OES) initially denied her compensation application on the basis of a voluntary quit. After the referee allowed benefits, the department, not the employer, in the original appeal to the board, raised the issue of section 3, as an independent ground for the ineligibility of persons unemployed through fault of their own. After the board initially denied benefits on that basis pursuant to oral argument, the claimant filed a ...


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