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FORREST S. MACFARLANE v. COMMONWEALTH PENNSYLVANIA (03/28/74)

decided: March 28, 1974.

FORREST S. MACFARLANE, APPELLANT,
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, APPELLEE



Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Forrest S. MacFarlane, No. B-117804.

COUNSEL

Bernard V. DiGiacomo, for appellant.

Sydney Reuben, Assistant Attorney General, with him Israel Packel, Attorney General, for appellee.

Judges Crumlish, Jr., Wilkinson, Jr. and Mencer, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 12 Pa. Commw. Page 551]

Forrest S. MacFarlane (MacFarlane) was employed as a maintenance foreman by The Pennsylvania State University (State University) at its Ogontz Campus from January 31, 1972 until November 13, 1972, at which time he was discharged because of his failure to fully disclose his medical history at the time of his application for employment.

MacFarlane's application for unemployment compensation benefits was denied as a result of a referee's determination that his unemployment resulted from his discharge from work for wilful misconduct. The Unemployment Compensation Board of Review (Board) affirmed and this appeal then followed.

Our scope of review in unemployment compensation cases is confined to questions of law and, absent fraud, a determination as to whether the Board's findings are supported by the evidence. Homony v. Unemployment Compensation Board of Review, 11 Pa. Commonwealth Ct. 142, 312 A.2d 77 (1973). Upon review of the record, we hold that the referee and the Board erred as a matter of law in determining that MacFarlane's unemployment was due to his wilful misconduct. We therefore reverse.

[ 12 Pa. Commw. Page 552]

Section 402(e) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. ยง 802(e), provides:

"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. . . ."

Although Section 402(e) does not define the term "willful misconduct," we have accepted the definition approved in Harmer Unemployment Compensation Case, 206 Pa. Superior Ct. 270, 272, 213 A.2d 221, 223 (1965): "'Misconduct within the meaning of an unemployment compensation act excluding from its benefits an employee discharged for misconduct must be an act of wanton or wilful disregard of the employer's interest, a deliberate violation of the employer's rules, a disregard of standards of behavior which the employer has the right to expect of his employee, or negligence in such degree or recurrence as to manifest culpability, wrongful intent, or evil design, or show an intentional and substantial disregard of the employer's interest ...


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