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ROBERT K. SANDERS v. COMMONWEALTH PENNSYLVANIA (04/22/87)

decided: April 22, 1987.

ROBERT K. SANDERS, 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 Robert K. Sanders, No. B-237502.

COUNSEL

Eileen D. Yacknin, for petitioner.

Clifford F. Blaze, Deputy Chief Counsel, with him, Jonathan Zorach, Assistant Counsel, for respondent.

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

Author: Colins

[ 105 Pa. Commw. Page 373]

Robert K. Sanders (claimant) appeals an order of the Unemployment Compensation Board of Review (Board) which reversed a referee's grant of unemployment benefits on the basis of Section 402(e) of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e).

Claimant had been employed as a security guard by Security Services, Inc. (employer). Claimant applied for

[ 105 Pa. Commw. Page 374]

    benefits to the Office of Employment Security which denied his application on the ground of willful misconduct. Claimant appealed and a hearing before the referee was scheduled for August 13, 1984 at 3:00 p.m. At approximately 2:30 p.m. that same day, employer's representative called the referee's office to say that he would be unable to attend and was told by a staff member of the referee's office that he would be contacted by telephone to give his testimony. At 3:00 p.m. the hearing was held as scheduled. The referee entered the message of the telephone conversation into the record but failed to call employer's representative. Following the hearing at which claimant testified, the referee issued a decision awarding claimant compensation benefits.

Employer filed an appeal and a request to reopen the hearing with the Board, which remanded the case on the ground that employer had not been contacted by telephone when it had been notified that this would be the case. After a second hearing during which both parties testified, the Board reversed the referee and denied benefits. This appeal followed.

The burden of proving willful misconduct is upon the employer. Hine v. Unemployment Compensation Board of Review, 103 Pa. Commonwealth Ct. 267, 520 A.2d 102 (1987). Our review is limited to determining whether constitutional rights were violated, an error of law committed, and whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704. Moore v. Unemployment Compensation Board of Review, 103 Pa. Commonwealth Ct. 154, 520 A.2d 80 (1987).

Claimant contends that the Board abused its discretion in remanding the case for additional testimony, arguing that employer lacked ...


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