Summary
holding that a claimant's misstatement on his application for benefits that he had lost his job because he was laid off rather than his actual discharge for willful misconduct supports a finding of fault under section 804.
Summary of this case from Nichols v. Unemployment Comp. Bd. of ReviewOpinion
Argued September 25, 1978
November 13, 1978.
Unemployment compensation — Words and phrases — Wilful misconduct — Violation of rules — Drinking on the job — Fault overpayment — Material misrepresentation.
1. An employe is ineligible for benefits under the Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897, when discharged for wilful misconduct, and drinking on the job in deliberate violation of a rule is properly found to constitute wilful misconduct. [458-9]
2. A fault overpayment of benefits under the Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897, is properly found to have occurred when such payment was made on the basis of a material misrepresentation by an applicant for benefits who asserted that he was laid off because of a reduction in work shifts when he was fired for drinking on the job in violation of rules. [460]
Argued September 25, 1978, before Judges ROGERS, BLATT and CRAIG, sitting as a panel of three.
Appeals, Nos. 2127 and 2178 C.D. 1977, from the Orders of the Unemployment Compensation Board of Review in case of In Re: Claim of Jeno Beres, Nos. B-149369 and B-149370.
Unemployment compensation benefits terminated by the Bureau of Employment Security. Claimant appealed. Referee affirmed termination and found fault overpayment. Claimant appealed to the Unemployment Compensation Board of Review. Decision affirmed. Claimant appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Angus Love, with him Harvey Strauss, for appellant.
Michael Klein, Assistant Attorney General, with him Reese F. Couch, Assistant Attorney General, and Robert P. Kane, Attorney General, for appellee.
Jeno Beres has appealed from an order of the Unemployment Compensation Board of Appeals affirming a referee's decision denying him benefits and declaring a "fault overpayment" of $2227.00.
Beres was discharged from employment as a bartender at The General Washington, Audubon, Pennsylvania on August 6, 1976. On August 16, 1976 Beres applied to reopen an unemployment compensation claim under which he had previously received benefits. He wrote on the application that he had been laid off because of a reduction in work shifts. Beres thereafter received a total of $2227.00 in benefits during the period from August 21, 1976 to January 29, 1977. The Bureau of Employment Security discontinued benefits when it received information that Beres had not been laid off but had been discharged for drinking while on duty. Beres appealed this decision to a referee who held a hearing and determined that Beres was ineligible for benefits under the provisions of Section 402(e) of the Unemployment Compensation Law (Law) because he was discharged for willful misconduct. The referee also found that Beres had received benefits as a result of his withholding of material information from the Bureau and he declared a "fault overpayment" of $2227.00 pursuant to Section 804(a) of the Law. Beres appealed the referee's decision to the Board of Review which affirmed the decision. This appeal followed.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P. S. § 802(e).
Id., 43 P. S. § 874(a).
Beres first says that there was no substantial evidence that he was discharged for willful misconduct. Willful misconduct has been described as follows:
As a general principle in order to deny unemployment compensation benefits to an employee, his or her action must involve a wanton or willful disregard of the employer's interest, a deliberate violation of the employer's rules, [or] a disregard of standards of behavior which the employer has the right to expect of his employees. . . . (Emphasis added.)
Loder v. Unemployment Compensation Board of Review, 6 Pa. Commw. 484, 488, 296 A.2d 297, 299-300 (1972).
Beres admits that he knew of his employer's rule against drinking on duty but says that he was not drinking. Two witnesses for the employer, Beres' supervisor and a fellow employee, testified at the referee's hearing that Beres had been drinking and was in an intoxicated condition at the time he was discharged. It is true that this testimony was contradicted by Beres; it remains, however, substantial evidence supporting the referee's finding.
Beres next says that the finding of a "fault overpayment" under Section 804(a) of the Law was wrong because there was no evidence to support a finding of fault on his part. The Superior Court has held that " 'fault' always connotes an act to which blame, censure, impropriety, shortcoming, or culpability attaches." Mills Unemployment Compensation Case, 164 Pa. Super. 421, 426-27, 65 A.2d 436, 439 (1949), rev'd on other grounds, 362 Pa. 342, 67 A.2d 114 (1949). Daniels v. Unemployment Compensation Board of Review, 10 Pa. Commw. 241, 309 A.2d 738 (1973). Beres says that he committed no such blameworthy or culpable act when he told the Bureau that he was laid off because he believed this to be an accurate account of his discharge. As we have already noted, the record contains ample evidence showing that Beres was not laid off but was fired for drinking and being intoxicated while on duty. Furthermore, the record shows that Beres' supervisor told him that he was being discharged for drinking. This testimony, which the referee apparently believed, again provides substantial evidence of fault. Beres' subsequent failure to write the correct reason on his application form was a material misrepresentation of the reasons for his unemployment. We have held such a misrepresentation constitutes fault as defined in Mills, supra. Stormer v. Unemployment Compensation Board of Review, 32 Pa. Commw. 220, 378 A.2d 1037 (1977).
[T]he legal consequence of a 'fault overpayment' under Section 804 (a) . . . . as opposed to a 'nonfault overpayment' under Section 804(b), is the method of recoupment available to the Bureau. Under Section 804(a) the Bureau can recoup 'fault overpayments' either directly from the claimant or by deducting them from any future compensation payable to him. Under Section 804(b), however, liability for 'nonfault overpayments' is limited to deductions from future benefits. (Citations omitted.)
Stormer v. Unemployment Compensation Board of Review, 32 Pa. Commw. 220. 224-25, 378 A.2d 1037, 1039-40 (1977).
The order of the Board is affirmed.
ORDER
AND NOW, this 13th day of November, 1978, the order of the Unemployment Compensation Board of Review dated September 13, 1977 is hereby affirmed.