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May 13, 1958


Appeal, No. 143, Oct. T., 1958, by employer, from decision of Unemployment Compensation Board of Review, December 24, 1957, No. B-45496-C, in re claim of Anthony J. Gagliardi. Decision reversed.


Duncan O. McKee, with him Hamilton C. Connor, Jr., and Ballard, Spahr, Andrews & Ingersoll, for appellant.

Sydney Reuben, Assistant Attorney General, with him $Thomas D. McBride, Attorney General, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.

Author: Woodside

[ 186 Pa. Super. Page 144]


This is an appeal by the Philadelphia Transportation Company from an award of unemployment compensation by the Board of Review to Anthony J. Gagliardi, one of the company's employes.

The claimant, who had been employed in the mechanical department of the company to service buses, was discharged on February 6, 1957. Subsequently,

[ 186 Pa. Super. Page 145]

    according to the terms of the collective bargaining agreement under which the claimant was employed, the discharge was referred to arbitrators who ordered Gagliardi reinstated in his job without any back pay. He returned to work with the appellant on May 14, 1957. He applied for unemployment compensation for the weeks ending March 28th and April 4th.

The bureau refused compensation on the ground that claimant was discharged for willful misconduct connected with his work. After taking testimony, the referee made findings of fact, and agreed with the bureau's conclusion. Upon appeal by the claimant to the Board of Review, it reversed the referee, ignoring his findings and basing its conclusions solely upon the decision of the arbitrators.

This was error. The board should have based its findings upon the evidence before the referee, and not upon the report of the arbitrators. We would be required to remand the case to the board for findings on the record were the decisive facts in dispute.

The evidence introduced before the unemployment compensation referee establishes that on the morning of February 5, 1957, during the claimant's scheduled hours of employment, he took his own automobile into the company's garage and was found there washing it in violation of the company's rules. This was not his first violation of his employer's rules. On December 15, 1956, during claimant's scheduled working hours, he was found in a barbershop reading a paper. Even before that event, the claimant's employment record was poor. Immediately prior to September 21, 1956, for seven consecutive nights he was low man in performance out of the team of seven employes with whom he was working. December 5, 1954, was a bad day for the claimant. He backed one bus into a work bench, and another into a garage door. For these offenses

[ 186 Pa. Super. Page 146]

    he received a one and a half days suspension. On June 24, 1954, contrary to the foreman's instruction, he left a bus in gear with the engine running, as a result of which the bus struck a pole causing $1000 damage to the bus. For this offense claimant was suspended for three and a half days.

The claimant admitted that in violation of company rules he brought his personal automobile into the company garage and was washing it, and that during working hours he was found reading in a barbershop. He attempted to minimize these violations by testifying that he was merely washing the snow off his car, and that he was in the barbershop only a few minutes to get warm. He refused to make any explanation concerning the times he ran the buses into the bench, the door and the pole, and refused to answer questions on cross-examination concerning these events on the ground that his answer might tend to incriminate him. Passing the question of whether, under the circumstances, the claim of self-incrimination was legally made,*fn1 the claimant's refusal to explain these events leaves us with no explanation of his actions in causing $1000 worth of damage to his employer's property as a result of the violation of the company's property as a result of the violation of the company's rule on one date, and endangering property and possibly fellow employes through apparent mishandling of company property on another date.

[ 186 Pa. Super. Page 147]

From this evidence the referee properly found that "claimant's conduct as a whole did evince such a willful and wanton disregard of the employer's interest as is found in deliberate violation and showed an intentional and substantial disregard of the employer's interest, and of the obligations owing by the claimant to his employer such as would constitute willful misconduct."

Section 402 (e) added to the Unemployment Compensation Law of December 5, 1936, P.L. (1937) 2897 by the Act of May 29, 1945, P.L. 1145, § 9, 43 PS § 802(e), as subsequently amended, provides as follows: "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, irrespective of whether or not such work is 'employment' as defined in this act;..."

"Willful misconduct" is not defined in the statute, but this Court has held it to comprehend an act of wanton or willful disregard of the employer's interests, a deliberate violation of the employer's rules, a disregard of standards of behavior which the employer has a right to expect of an employe, or negligence indicating an intentional disregard of the employer's interest or of the employe's duties and obligations to the employer. Moyer Unemployment Compensation Case, 177 Pa. Superior Ct. 72, 74, 110 A.2d 753 (1955); Simonian Unemployment Compensation Case, 174 Pa. Superior Ct. 81, 82, 98 A.2d 428 (1953); Detterer Unemployment Compensation Case, 168 Pa. Superior Ct. 291, 294, 77 A.2d 886 (1951).

"Willful misconduct" does not necessarily require actual intent to wrong the employer. If there is a conscious indifference to the perpetration of a wrong, or a reckless disregard of the employe's duty to his

[ 186 Pa. Super. Page 148]

    employer he can be discharged for "willful misconduct" and will be denied benefits. Dati Unemployment Compensation Case, 184 Pa. Superior Ct. 292, 295, 132 A.2d 765 (1957); Ristis Unemployment Compensation Case, 178 Pa. Superior Ct. 400, 116 A.2d 271 (1955); Sabatelli Unemployment Compensation Case, 168 Pa. Superior Ct. 85, 88, 89, 76 A.2d 654 (1950). As stated by this Court in Sopko Unemployment Compensation Case, 168 Pa. Superior Ct. 625, 628, 82 A.2d 598 (1951): "An employe is obliged to render loyal, diligent, faithful, and obedient service to his employer."

This does not mean that every employe who is discharged because his work is not satisfactory is ineligible for compensation. Because of limited mental capacity, inexperience, or lack of coordination a conscientious employe may be unable to perform the duties of his employment to the satisfaction of his employer. If such person is discharged, he is entitled to unemployment compensation. Ristis Unemployment Compensation Case, supra; Taylor Unemployment Compensation Case, 170 Pa. Superior Ct. 119, 84 A.2d 521 (1951); Lux Unemployment Compensation Case, 180 Pa. Superior Ct. 90, 93, 118 A.2d 231 (1955).

Here, the claimant's violation of his employer's rules in washing his car and in going to the barbershop during the time for which he was being paid to work was intentional. Laney Unemployment Compensation Case, 167 Pa. Superior Ct. 551, 553, 76 A.2d 487 (1950). To hold otherwise would be a capricious disregard of the testimony. Claimant's leaving a bus in gear with the engine running contrary to his foreman's order, can also be considered as willful misconduct. His unexplained collisions with the door and bench on the same day indicate "a conscious indifference to the perpetration of the wrong", so that a constructive intention is imputable to him. Sabatelli Unemployment Compensation

[ 186 Pa. Super. Page 149]

    and employe. The Board of Review cannot delegate to another body its duty to find facts and apply the law. Here it ignored the findings and conclusions of the referee which were fully supported by the evidence, and accepted the findings of the arbitrators. It is interesting but not important that the Board of Review came to its conclusion in spite of the statement of the impartial arbitrator in his discussion that the claimant, "has a very bad record" and "deserves to be fired,"... but, "I am going to give him the benefit of the doubt." Whatever the arbitrators found or decided could not rule this case. The arbitrators had no authority from the legislature to decide whether the claimant was guilty, under the law, of willful misconduct so as to be ineligible for unemployment compensation, and the Board of Review had no power to delegate, except to a referee, the duty imposed upon it by law. This is so basic that it is difficult to find cases in which the question has been raised, but it might be noted that, as a general rule even judgments of courts of record in criminal cases are not admissible in civil proceedings founded on the same facts, and vice versa. 50 C.J.S. Judgments § 754(b), p. 269, 270. Nowak v. Orange, 349 Pa. 217, 36 A.2d 781 (1944); Zubrod v. Kuhn, 357 Pa. 200, 204, 53 A.2d 604 (1947); Bobereski, Adm. v. Insurance Company of Pa., 105 Pa. Superior Ct. 585, 592, 161 A. 412 (1932); Estate of Edward D. Gartner, 94 Pa. Superior Ct. 45, 48 (1928); V Wigmore on Evidence, 3rd Edition, § 1671a. If a judgment of a court of record cannot generally be used in a proceeding in another court of record founded on the same facts, how much less so could a decision of a non-governmental body be used to determine the willful misconduct of an unemployment compensation claimant.

[ 186 Pa. Super. Page 151]

Furthermore, the issue before the arbitrators was entirely different than the issue before the Board of Review. The arbitrators were not dealing with the legal problem of willful misconduct, but with the problem of discharge and reinstatement under the collective bargaining agreement. Employment contract violations are not redressable by the award of benefits out of the unemployment compensation fund. Byerly Unemployment Compensation Case, 171 Pa. Superior Ct. 303, 309, 90 A.2d 322 (1952).

The Board of Review reasoned that in as much as the employer and employes agreed to arbitration, it was bound by such findings of fact by the arbitrators as might have a bearing upon the allowance of unemployment compensation. This overlooks the interest which the Commonwealth has in the unemployment compensation fund, and the duty of the unemployment compensation officials to protect the fund against dissipation by those not entitled under the law to payments from it. The Board of Review upon appeal is made the defendant by statute, and the legislature has indicated that it does not expect the board to be satisfied with the evidence presented to it by the employer and employe if it is of the opinion that it has not thereby obtained all the facts, for the legislature makes repeated reference to "investigations" by the board. See 43 PS § 763(d).*fn2

[ 186 Pa. Super. Page 152]

In Phillips v. Unemployment Compensation Board, 152 Pa. Superior Ct. 75, 83, 30 A.2d 718 (1943), Judge HIRT speaking for this Court said: "The Board is charged with the duty of safeguarding the fund. If the employer does not appear and in justice to the fund additional testimony is required, it is the duty of the referee or the Board to call witnesses who can supply it." It is the duty of the referee, as representative or agent for the board "to fairly develop the facts," as Judge WRIGHT said in Rokosky Unemployment Compensation Case, 174 Pa. Superior Ct. 357, 361, 101 A.2d 124 (1953).

The employer and the employe cannot determine by agreement that an employe shall receive unemployment benefits, when under the facts and the law he is not entitled to such payments. See Cozzone Unemployment

[ 186 Pa. Super. Page 153]

    a case involving willful misconduct, the last sentence in the opinion made reference to the report of a board of arbitrators, but the language used by this Court in referring to the report should have indicated that we did not consider it a part of the case. The reference starts with, "In passing it may be noted."

Section 18 of the Unemployment Compensation Law (43 PS § 830) provides: "In an appeal to the Superior Court the findings of the board or referee, as the case may be, as to the facts, if supported by the evidence and in the absence of fraud, shall be conclusive." The evidence here supports the findings of the referee. There is no relevant evidence to support the findings of the board. The claimant's unemployment during the weeks in question was "due to his discharge or temporary suspension from work for willful misconduct connected with his work," and he is, therefore, ineligible for unemployment compensation.


Decision of the Board of Review is reversed.

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