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ARLENE MILLER v. COMMONWEALTH PENNSYLVANIA (07/23/86)

decided: July 23, 1986.

ARLENE MILLER, 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 Arlene Miller, No. B-240968.

COUNSEL

Christine E. Wright, for petitioner.

James K. Bradley, Associate Counsel, with him, Charles G. Hasson, Acting Deputy Chief Counsel, for respondent.

President Judge Crumlish, Jr., Judge Colins, and Senior Judge Blatt, sitting as a panel of three. Opinion by President Judge Crumlish, Jr.

Author: Crumlish

[ 99 Pa. Commw. Page 138]

Arlene Miller appeals an Unemployment Compensation Board of Review order upholding a referee's decision which denied her benefits due to willful misconduct. Section 402(e) of the Unemployment Compensation Law (Act).*fn1 We vacate and remand.

Miller, a waitress and bartender, was discharged for leaving work at 11:45 p.m. on December 31, 1984. At Miller's request the Board subpoenaed the timecards of all other employees who worked the night of December

[ 99 Pa. Commw. Page 13931]

, 1984-January 1, 1985.*fn2 The employer failed to produce these timecards at the referee hearing. Neither the referee nor the Board took any action to have the subpoena enforced.*fn3 The employer's manager testified that Miller was discharged because she left work early without permission and left him shorthanded on the busiest night of the year.

Where the referee or Board refuses to seek enforcement of a subpoena, our scope of review is limited to determining whether there was an abuse of discretion or an error of law. See Jones v. Unemployment Compensation Board of Review, 68 Pa. Commonwealth Ct. 97, 447 A.2d 1136 (1982).

Miller contends that the referee and Board erred by taking no measures to enforce the subpoena for the employees' timecards. We agree.

Two decisions are pertinent. In Unemployment Compensation Board of Review v. Stiles, 19 Pa. Commonwealth Ct. 38, 340 A.2d 594 (1975), we held that the Board erred by not requiring the testimony of the claimant's foreman where the claimant was discharged for allegedly threatening the foreman. In Fernandes v. Unemployment Compensation Board of Review, 53 Pa. Commonwealth Ct. 79, 416 A.2d 644 (1980), we held ...


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