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THOMAS C. HIMMELWRIGHT v. COMMONWEALTH PENNSYLVANIA (06/04/87)

decided: June 4, 1987.

THOMAS C. HIMMELWRIGHT, 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 Thomas C. Himmelwright, No. B-246810.

COUNSEL

M. Samuel Rosenzweig, Laurel Legal Services, for petitioner.

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

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

Author: Palladino

[ 106 Pa. Commw. Page 418]

Thomas C. Himmelwright (Petitioner) appeals here from an Order of the Pennsylvania Unemployment Compensation Board of Review (Board) affirming a referee's decision and declaring Petitioner ineligible for benefits under the provisions of Section 402(e) of the Unemployment Compensation Law (Law).*fn1

[ 106 Pa. Commw. Page 419]

The facts in the case at bar are not in dispute. Petitioner was last employed by Dan's AM-PM Mini-Mart (Employer) as a clerk for approximately three years at the rate of $3.75 per hour. Although Petitioner had been offered full-time work by the Employer approximately one year prior to August 11, 1985, he refused this offer of full-time employment and chose to continue as a part-time employee. Therefore, Petitioner had been scheduled to work only an eight hour shift on Sundays for the year prior to his discharge. Petitioner was fired because he did not come into work on August 11, 1985. Petitioner did not report his discharge to OES and continued to receive his benefits.

In June, 1985, Petitioner had begun to receive $85 per week in unemployment compensation benefits (benefits). His part-time employment did not affect his entitlement to these benefits because his earnings were $30 per week which was less than his partial benefit credit of $34 per week. However, upon learning from Employer that Petitioner had been discharged for failure to report to work, OES issued a Notice of Determination which concluded that Petitioner's conduct constituted willful misconduct and, pursuant to Sections 402(e)*fn2 and 401(c)*fn3 of the Law, Petitioner's entire claim for benefits received during the weeks ending August 10, 1985 through September 7, 1985 was disapproved. Because Petitioner had already received benefits for these weeks, OES also issued a second Notice of Determination finding, pursuant to Section 804(a),*fn4 that Petitioner had received a fault overpayment in the amount of $400.00.

Petitioner appealed the OES determination and, after a hearing, a referee affirmed the OES determination

[ 106 Pa. Commw. Page 420]

    of willful misconduct and denied all benefits to Petitioner. In addition, the referee affirmed the OES determination of the $400.00 fault overpayment. Petitioner appealed to the Board which affirmed the referee's order.

On appeal to this court, Petitioner does not contest the determination of willful misconduct but asserts that because his part-time earnings of $30.00 per week were less than his partial benefit credit of $34.00, it was clear error to disallow all weekly compensation benefits. Since his part-time work had no effect on his entitlement to regular benefits, Petitioner asserts that the loss of his employment, even though based on willful misconduct, is irrelevant. As a result, Petitioner also argues that the referee's imposition of a penalty under Section 804(a) was in error.

The sole issue on appeal to this Court is whether an employee who is discharged for willful misconduct from a part-time position where he earns less than his partial benefit credit can be disallowed all unemployment compensation benefits in light of the fact that the employee voluntarily ...


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