Himmelwright v. Commonwealth

526 A.2d 846, 106 Pa. Commw. 417, 1987 Pa. Commw. LEXIS 2201
CourtCommonwealth Court of Pennsylvania
DecidedJune 4, 1987
DocketAppeal, No. 584 C.D. 1986
StatusPublished

This text of 526 A.2d 846 (Himmelwright v. Commonwealth) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Himmelwright v. Commonwealth, 526 A.2d 846, 106 Pa. Commw. 417, 1987 Pa. Commw. LEXIS 2201 (Pa. Ct. App. 1987).

Opinion

Opinion by

Judge Palladino,

Thomas C. Himmelwright (Petitioner) appeals here from an Order of the Pennsylvania Unemployment Compensation Board of Review (Board) affirming a referees decision and declaring Petitioner ineligible for benefits under the provisions of Section 402(e) of the Unemployment Compensation Law (Law).1

[419]*419The facts in the case at bar are not in dispute. Petitioner was last employed by Dans 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 recieve $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 Petitioners conduct constituted willful misconduct and, pursuant to Sections 402(e)2 and 401(c)3 of the Law, Petitioners 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),4 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 [420]*420of 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 referees 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 referees 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 feet that the employee voluntarily chose to work part-time when full-time work was available with the employer.

Petitioner bases his argument on Richards v. Unemployment Compensation Board of Review, 85 Pa. Commonwealth Ct. 90, 480 A.2d 1338 (1984), and Unemployment Compensation Board of Review v. Fabric, 24 Pa. Commonwealth Ct. 238, 354 A.2d 905 (1976). In Fabric, the claimant, Robert Fabric (Fabric), had been an employee of the U.S. Postal Service in a full-time job until he was discharged in a valid separation, at which time he applied for and received unemployment benefits. Fabric then began working part-time as a cashier in a tobacco shop earning less than his partial benefit credit of $20.00 per week. Fabric voluntarily quit his part-time job in what was determined to be an [421]*421invalid separation under Section 402(b).5 The Board reversed a referees determination and denied all benefits to Fabric because he voluntarily terminated his job without cause of a necessitous and compelling nature. We reversed the Board holding that when a claimant voluntarily leaves part-time employment, he is rendered ineligible for further benefits only to the extent that his benefits were decreased by virtue of his part-time earnings.

In Richards, the holding in Fabric was applied to a claimant who was discharged for willful misconduct. The claimant in Richards was discharged from a part-time job with Dominos Pizza where his weekly earnings were less than his partial benefit credit. The Board disallowed all benefits contending that a separation from the part-time employment for willful misconduct contained some form of impropriety which placed that case outside the scope of Fabric. We reversed the board holding that the loss of the part-time employment was irrelevant because it had no effect on the claimants entitlement to regular benefits. The rationale of Fabric and Richards hinged on the concept that when a claimant leaves part-time employment but does not increase his weekly benefits, an additional burden is not imposed on the unemployment compensation fund.6

Fabric and Richards are distinguishable from the case at bar because, here, Petitioner has placed an addb tional burden on the fund. The referee found that Petitioner had been offered full-time work by the Employer [422]*422approximately one year prior to August 11, 1985. This finding is supported by the following testimony:

QR: In your conversation with the Office of employment security, you had indicated Mr. Culp that you had offered Mr. Himmelwright a full time work?
EW: Yes.
. QR: When had you made that offer to him?
EW: When he (inaudible) he said that he didn’t want to work more than one day a week.
QR: When was that though, do you have any idea?
EW: When he went out and left, my son brought him and left there and went down his house and he was still working one day and he said (inaudible) so when I hired this other man I asked him and he said that he didn’t want to work more than one day a week up there at the store.
QR: Was he working somewhere else full time?
EW: He was collecting unemployment.
QR: He was collecting unemployment?
EW: As far as I know.
QR: Now earlier it was indicated that the Claimant had worked for three years, we are looking at something here that he had worked for three years just one day?

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Related

Unemployment Compensation Board of Review v. Fabric
354 A.2d 905 (Commonwealth Court of Pennsylvania, 1976)
Richards v. Commonwealth, Unemployment Compensation Board of Review
480 A.2d 1338 (Commonwealth Court of Pennsylvania, 1984)

Cite This Page — Counsel Stack

Bluebook (online)
526 A.2d 846, 106 Pa. Commw. 417, 1987 Pa. Commw. LEXIS 2201, Counsel Stack Legal Research, https://law.counselstack.com/opinion/himmelwright-v-commonwealth-pacommwct-1987.