Summary
In Orloski v. Unemployment Compensation Board of Review, 38 Pa. Commw. 174, 392 A.2d 333 (1978), we remanded a case to the Board because, although the referee had stated that criminal charges had been filed against the claimant, this finding alone did not support the Board's conclusion of willful misconduct.Id. at 177, 392 A.2d at 334.
Summary of this case from Emery Worldwide v. CommonwealthOpinion
Argued September 15, 1978
October 18, 1978.
Unemployment compensation — Burden of proof — Words and phrases — Wilful misconduct — Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897 — Criminal charges — Theft.
1. An employe is ineligible for benefits under the Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897, if the employer proves that the employe was discharged for wilful misconduct, which is the wanton and wilful disregard of the employer's interest, a deliberate violation of rules, a disregard of expected behavior standards or negligence manifesting culpability, wrongful intent, evil design or an intentional disregard of the employer's interest or the employe's duties and obligations. [175-6-7]
2. Findings of the Unemployment Compensation Board of Review that an employe was discharged after being apprehended for and charged with theft are inadequate to support a conclusion of wilful misconduct, and the matter is properly remanded for precise findings as to whether the act of misconduct was committed. [177]
Argued September 15, 1978, before Judges CRUMLISH JR., WILKINSON, JR. and CRAIG, sitting as a panel of three.
Appeal, No. 825 C.D. 1977, from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Donald E. Orloski, No. B-142581.
Application to the Bureau of Employment Security for unemployment compensation benefits. Application denied. Applicant appealed to the Unemployment Compensation Board of Review. Denial affirmed. Applicant appealed to the Commonwealth Court of Pennsylvania. Held: Order vacated. Case remanded.
Arnold H. Cantor, with him David G. Petonic, for petitioner.
Michael Klein, Assistant Attorney General, with him Sydney Reuben, Assistant Attorney General, and Robert P. Kane, Attorney General, for respondent.
Donald E. Orloski, Claimant, appeals from a decision of the Unemployment Compensation Appeal Board of Review (Board) denying him benefits.
Claimant served for approximately 13 years as a carrier for the United States Post Office until he was apprehended by the Postal Inspection Service for the alleged theft and destruction of mail in July, 1976. The Board, which denied benefits for the compensable weeks ending August 21, 1976 and August 28, 1976, affirmed the referee's decision, citing 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), which provides, in pertinent part:
An employe shall be ineligible for compensation for any week —
. . . .
(e) In which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work.
. . .
The referee made only two findings of fact relative to our inquiry:
2. Claimant was suspended from his employment effective July 31, 1976, after being apprehended by the Postal Inspection Service on July 28, 1976 for the theft and destruction of mail.
. . . .
4. Criminal charges have been filed against the claimant.
Claimant urges on appeal that the Board's findings of fact do not support a legal conclusion of willful misconduct. We agree.
Claimant also raises several objections to the evidence in support of Finding of Fact No. 2, contending that any finding that Claimant engaged in the theft or destruction of mail is only supported on the record by uncorroborated hearsay. Because of our disposition of this appeal, we need not address these contentions.
Once again, we are reminded that in an unemployment compensation case, the burden is upon the employer to prove that a discharged employee is guilty of willful misconduct. See Williams v. Unemployment Compensation Board of Review, 32 Pa. Commw. 641, 380 A.2d 932 (1977). Though not statutorily defined, we have repeatedly defined willful misconduct. In Lytle v. Unemployment Compensation Board of Review, 36 Pa. Commw. 77, 80, 387 A.2d 962, 963 (1978), we wrote:
[T]he wanton and willful disregard of an employer's interest, a deliberate violation of the employer's rules, a disregard of expected standards of behavior, or negligence manifesting culpability, wrongful intent, evil design or an intentional disregard of the employer's interest or the employee's duties or obligations to the employer [constitute willful misconduct].
Without doubt, theft and destruction of mail are willful misconduct. However, the Board's finding that Claimant was apprehended and criminally charged cannot support its conclusion of willful misconduct. The employer must produce substantial evidence upon which the Board may find as a matter of fact the commission of a specific act or acts of willful misconduct. See Unemployment Compensation Board of Review v. Vereen, 29 Pa. Commw. 252, 370 A.2d 1228 (1977).
Our scope of review is limited to questions of law. We are not at liberty to infer findings not actually made by the Board. See Unemployment Compensation Board of Review v. Walton, 21 Pa. Commw. 47, 343 A.2d 70 (1975).
So that we may properly review its conduct, it is incumbent upon the Board to make detailed and precise findings of fact which are supported by the record as a whole. Here, the Board's findings are inadequate and, hence, we must remand for complete and supportive findings, if any, regarding the willful misconduct issue.
Accordingly, we
ORDER
AND NOW, this 18th day of October, 1978, the decision of the Unemployment Compensation Board of Review denying benefits to Donald E. Orloski is vacated and the matter remanded for specific findings as to whether Claimant purloined or destroyed the mail and, if so, to conclude as a matter of law that these transgressions constitute willful misconduct.