Opinion
Argued May 11, 1979
July 31, 1979.
Unemployment compensation — Wilful misconduct — Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897 — Insufficient evidence — Immoral conduct.
1. The burden is upon the employer to prove that the discharge of an employe was for wilful misconduct precluding receipt by the employe of benefits under the Unemployment Compensation Law, Act 1936, and, when an employer only sets forth general conclusions that the employe engaged in immoral conduct and declined to provide facts in support of such conclusion, the burden of the employer is not met. [552-3]
Argued May 11, 1979, before Judges BLATT, DiSALLE and MacPHAIL, sitting as a panel of three.
Appeal, No. 1510 C.D. 1978, from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Bernard J. Smith, Jr., No. B-159655.
Application to the Bureau of Employment Security for unemployment compensation benefits. Application denied. Applicant appealed. Benefits awarded by referee. Employer appealed to the Unemployment Compensation Board of Review. Award affirmed. Employer appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Philip Corbin, Jr., for petitioner.
GuruJodha Singh Khalsa, Assistant Attorney General, with him Reese F. Couch, Assistant Attorney General, and J. Justin Blewitt, Acting Attorney General, for respondent, Unemployment Compensation Board of Review.
Shelley W. Elovitz, with him Ronald N. Watzman, for respondent, Bernard J. Smith, Jr.
Bernard J. Smith, Jr. (claimant) was dismissed by the New Kensington-Arnold School District (employer) for immoral conduct in connection with his teaching responsibilities. Although he was denied unemployment benefits by the Bureau of Employment Security, he was later granted benefits by a referee who held that the employer had not proved the discharge to have been for willful misconduct as required by Section 402(e) of the Unemployment Compensation Law, 43 P. S. § 802(e). The Board affirmed and this appeal followed.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P. S. § 751 et seq.
We have reviewed the record and are satisfied that the Board was correct. The employer's representative testified only in a conclusory manner that the claimant had engaged in immoral conduct and was consequently discharged; he declined to elaborate even after the referee pointed out the lack of underlying facts. There being no competent evidence from which the Board could have made findings sufficient to support a determination of willful misconduct, it properly awarded benefits. See Parke v. Unemployment Compensation Board of Review, 38 Pa. Commw. 382, 393 A.2d 62 (1978). While there may be a very good reason for the employer's inability to produce more evidence, we have no basis upon which to reach a conclusion different from that of the Board.
We agree with the Board, moreover, that a remand is not in order because the employer has not proffered any additional competent evidence.
The order of the Board is therefore affirmed.
Judge DiSALLE dissents.
ORDER
AND NOW, this 31st day of July, 1979, the order of the Unemployment Compensation Board of Review in the above-captioned case is hereby affirmed.