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PATRISHA MCNEILL v. COMMONWEALTH PENNSYLVANIA (06/06/86)

decided: June 6, 1986.

PATRISHA MCNEILL, APPELLANT,
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, APPELLEE



Appeal from the Order of the Commonwealth Court, No. 3664 C.D. 1983, entered January 24, 1985, affirming the decision and order of the Unemployment Compensation Board of Review, No. B-224812, entered December 2, 1983. Pa. Commw. , A.2d (1985).

COUNSEL

Terry L. Fromson, Philadelphia, for appellant.

Richard F. Faux, Charles G. Hasson, Harrisburg, for appellee.

Nix, C.j., and Larsen, Flaherty, Hutchinson, Zappala and Papadakos, JJ. McDermott, J., did not participate in the consideration or decision of this case. Hutchinson, J., filed a dissenting opinion.

Author: Larsen

[ 510 Pa. Page 576]

OPINION OF THE COURT

The issue presented by this appeal is whether the Unemployment Compensation Board of Review (Board), appellee herein, erred in remanding this case for a second hearing before a referee, per the request of the employer, where the employer did not attend the first hearing and did not explain its absence or show other cause for the second hearing.

On June 13, 1983, appellant, Patrisha McNeill, was discharged from her position as a cashier at a Rite Aid drug store. On July 3, 1983, appellant applied for unemployment compensation benefits. The application was mailed to appellant's employer and, in response, the employer claimed that appellant had been discharged because she had failed to properly notify the employer of her absence from work during the week preceding her discharge. On August 9, 1983, the Office of Employment Security denied appellant's application on the ground of willful misconduct.

Appellant appealed and, after a hearing at which the employer did not appear, the referee issued a decision on September 7, 1983 reversing the determination of the Office of Employment Security, and awarding benefits to appellant. On September 13, 1983, appellant's employer wrote the following letter to the Board:

To whom it may concern,

We do not agree with the decision rendered by the referee on appeal # 83-1-D-647. The claimant Patrisha McNeill, (address omitted), should not be eligible for unemployment. The claimant was terminated for willful misconduct and the statement in fact-finding # 3 was

[ 510 Pa. Page 577]

    totally false. We wish to appeal and have a further hearing. Please notify (name and address omitted) when further appeal will be heard.

Letter dated September 13, 1983, Original Record at Item 9.

The Board thereupon allowed further appeal and issued a Board Hearing Order remanding the case for a second hearing before the referee "for the purpose of establishing additional testimony regarding the merits of the case."*fn1 Board Hearing Order dated October 18, 1983, Original Record at Item 11. Both parties appeared at that hearing and presented testimony. Thereafter, on December 2, 1983, based on the evidence ...


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