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AVA E. GIDDENS v. COMMONWEALTH PENNSYLVANIA (10/29/86)

decided: October 29, 1986.

AVA E. GIDDENS, 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 Ava E. Giddens, No. B-230630.

COUNSEL

Robert Senville, for petitioner.

Charles D. Donahue, Associate Counsel, with him, Charles G. Hasson, Acting Deputy Chief Counsel, for respondent.

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

Author: Macphail

[ 101 Pa. Commw. Page 577]

Ava E. Giddens (Claimant) petitions for review of an Unemployment Compensation Board of Review (Board) determination which affirmed a referee's denial of benefits based on Claimant's willful misconduct. We vacate and remand.

The referee found that Claimant had been employed as a stock person by Tersuhow's (Employer) and was paid minimum wage from September, 1980, until she was discharged on March 1, 1984. Claimant was discharged because she refused to do work as a "steamer" during a heavy workload period. Although her daily routine did not include steaming, Claimant had on previous occasions performed other duties outside her customary ones. The referee found that the "steamer" duties were easy but that Claimant refused because she believed she would be retained permanently in the job if she agreed to do it on this occasion. Claimant continued to refuse to steam even after being asked several

[ 101 Pa. Commw. Page 578]

    times to reconsider and after being advised that she would be fired if she did not steam.

The Office of Employment Security (OES) denied benefits solely on the basis of its determination that Claimant had voluntarily quit work without cause of a necessitous or compelling nature, Section 402(b) of the Unemployment Compensation Law (Law), Act of December 5, 1936, P.L. (1937) 2897, as amended, 43 P.S. § 802(b). The referee affirmed the denial of benefits but changed the legal basis for denial to willful misconduct, Section 402(e) of the Law, 43 P.S. § 802(e).

At the hearing the referee neither asked for the parties' consent to consider the willful misconduct issue, nor did he verbally warn the parties that he was considering that issue.

Claimant argues here that the referee erred, in light of 34 Pa. Code § 101.87,*fn1 in considering the Section 402(e) (willful misconduct) issue since he had not received the parties' consent and the OES determination was confined to Section 402(b) (voluntary quit). Claimant further argues that the Employer has waived any further consideration of either the Section 402(b) or 402(e) issues and that the proper remedy is to reverse and remand solely for a calculation of benefits. In the alternative, Claimant argues that ...


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