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WILDER & MILLER v. COMMONWEALTH PENNSYLVANIA (05/13/87)

decided: May 13, 1987.

WILDER & MILLER, P.C., 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 Elizabeth J. Dornburg, No. B-237323.

COUNSEL

Mark B. Greenblatt, for petitioner.

Samuel H. Lewis, Associate Counsel, with him, Charles G. Hasson, Acting Deputy Chief Counsel, for respondent.

Judges Craig and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Palladino.

Author: Palladino

[ 106 Pa. Commw. Page 110]

This is an appeal by Wilder & Miller, P.C. (employer) from a decision of the Unemployment Compensation Board of Review (board) affirming the order of a referee awarding benefits to Elizabeth J. Dornburg (claimant). For the reasons which follow, we affirm.

Claimant was employed by employer in excess of five years, attaining the position of head secretary. At a meeting held on June 25, 1984, claimant inquired as to the possibility of switching from full-time to part-time employment in order to spend more time with her retired husband. During a discussion with employer on June 28, 1984, claimant expressed an intention to terminate

[ 106 Pa. Commw. Page 111]

    her employment. After further discussion, claimant requested a leave of absence which was granted. Claimant's last day of employment was July 6, 1984, which was to be followed by a two-week, unpaid leave of absence and a one week paid vacation. She was to resume working on a part-time basis on July 30, 1984.

In the interim, on July 16, 1984, employer obtained information indicating that claimant was seeking other employment. By letter dated July 20, 1984, employer sent claimant her "final" pay check and told her that they were making employment plans which did not include claimant. Claimant contacted employer on July 24, 1984, confirming that she was seeking other employment and acknowledging that she would accept same if it was offered. By letter dated July 25, 1984, employer terminated claimant's employment, effective July 25, 1984.

Claimant filed an application for unemployment compensation with the Office of Employment Security (OES), which was denied. Although OES determined that claimant would not be ineligible for unemployment compensation under Section 402(e) of the Unemployment Compensation Law (Law),*fn1 it determined that she was ineligible for compensation under Section 401(d)(1) of the Law*fn2 because she was not available for suitable work, limiting herself to part-time work "following a history of full-time employment".

Although denied benefits, claimant did not appeal the OES decision. However, employer appealed the decision on the grounds that claimant's conduct did constitute willful misconduct in violation of Section 402(e) of ...


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