Opinion
Argued September 14, 1979
November 8, 1979.
Unemployment compensation — Scope of appellate review — Error of law — Findings of fact — Substantial evidence — Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897 — Wilful misconduct — Burden of proof — Conflicting evidence.
1. In an unemployment compensation case review by the Commonwealth Court of Pennsylvania is limited to questions of law and a determination of whether findings of fact are supported by substantial evidence. [230]
2. An employe who is shown by his employer to have been discharged for wilful misconduct is ineligible for benefits under the Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897, and evidence that the discharge of an attorney was for tardiness, failure to represent a client properly and threatening co-workers with bodily harm supports a conclusion that the firing resulted from wilful misconduct of the employe. [230]
3. In an unemployment compensation case the resolution of conflicts in the evidence is for the Unemployment Compensation Board of Review rather than the reviewing court. [231]
Argued September 14, 1979, before Judges MENCER, BLATT and MacPHAIL, sitting as a panel of three.
Appeal, No. 1810 C.D. 1978, from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Albert M. Bender, dated December 1, 1977.
Application to the Bureau of Employment Security for unemployment compensation benefits. Benefits awarded. Employer appealed. Benefits denied by referee. Applicant appealed to the Unemployment Compensation Board of Review. Denial affirmed. Applicant appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
No appearance for appellant.
Peggy Browning, with her Elsa Newman, Assistant Attorney General, Gerard J. Jackson, Louis H. Wilderman, and Meranze, Katz, Spear and Wilderman, for appellee.
This is an appeal from an order of the Unemployment Compensation Board of Review (Board) affirming the referee's decision denying benefits to Albert M. Bender (Claimant).
Claimant was employed as a staff attorney for District Council No. 33 Legal Services (Employer) for approximately nineteen months. On October 14, 1977, the Chairman of the Board of Legal Services terminated Claimant's employment. Claimant applied for and was granted benefits by the Bureau of Unemployment Security (Bureau). Employer filed an appeal on November 7, 1977. After a hearing, the referee reversed the Bureau and disallowed benefits due to willful misconduct on Claimant's part. Upon Claimant's appeal from the referee's decision, the Board ordered a remand hearing. After that hearing, the referee again denied benefits and the Board affirmed the referee's decision. This appeal followed.
The Bureau has been renamed the Office of Employment Security, see 9 Pa. B. 2879 (1979).
Pursuant to 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).
Our scope of review is limited to questions of law and, absent fraud, a determination of whether or not the findings are supported by substantial evidence. Bigley v. Unemployment Compensation Board of Review, 38 Pa. Commw. 569, 393 A.2d 1312 (1978).
Claimant argues that Employer failed to sustain its burden of proof and that the findings of fact were not supported by substantial evidence. We disagree.
Of course, Claimant is correct that the burden of proving willful misconduct is on the Employer. Murraysville Telephone Co. v. Unemployment Compensation Board of Review, 41 Pa. Commw. 35, 398 A.2d 250 (1979). The record here indicates that the Employer offered testimony of offenses ranging from repeated tardiness and failure to properly represent a client, to threatening co-workers with bodily harm. Although Claimant denied all misconduct and offered testimony to rebut Employer's claims, the referee chose to believe the Employer's witnesses. We have often stated that conflicts in the testimony must be resolved by the fact finder. Stewart v. Unemployment Compensation Board of Review, 43 Pa. Commw. 279, 402 A.2d 302 (1979). Inasmuch as there is substantial evidence in the record to support the referee's findings, those findings are conclusive upon us. Id.
Finally, Claimant argues that the Board's decision was contrary to law because the evidence failed to prove that Claimant was guilty of willful misconduct. The referee found as a fact that Claimant was terminated because of his work performance. It is well settled that,
[f]or behavior to constitute willful misconduct, it must evidence (1) wanton and willful disregard of employer's interest (2) deliberate violation of employer's rules (3) disregard of standards of behavior which an employer can rightfully expect from his employee or (4) negligence which manifests culpability, wrongful intent, evil design or intentional and substantial disregard of the employer's interests or the employee's duties and obligations.
Murraysville, supra, at 37, 398 A.2d at 251. The referee and the Board found that the evidence of Claimant's misconduct in the instant case meets those tests. We agree.
Accordingly, we affirm.
ORDER
AND NOW, this 8th day of November, 1979, the order of the Unemployment Compensation Board of Review, dated June 29, 1978 denying benefits to Albert M. Bender is hereby affirmed.