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UNEMPLOYMENT COMPENSATION BOARD REVIEW PENNSYLVANIA v. FRAZIER DIXON (10/25/76)

decided: October 25, 1976.

UNEMPLOYMENT COMPENSATION BOARD OF REVIEW OF PENNSYLVANIA
v.
FRAZIER DIXON, APPELLANT



Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Frazier Dixon, No. B-125357.

COUNSEL

Kenneth S. Hall, for appellant.

Charles G. Hasson, Assistant Attorney General, with him Sydney Reuben, Assistant Attorney General, and Robert P. Kane, Attorney General, for appellee.

Judges Crumlish, Jr., Rogers and Blatt, sitting as a panel of three. President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers and Blatt. Judge Kramer did not participate. Opinion by Judge Rogers.

Author: Rogers

[ 27 Pa. Commw. Page 9]

Frazier Dixon appeals from a decision of the Unemployment Compensation Board of Review adverse to his claim for unemployment compensation benefits.

[ 27 Pa. Commw. Page 10]

Mr. Dixon was declared ineligible for benefits for willful misconduct, pursuant to 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. § 802(e).

Mr. Dixon had worked for wages for Publicker Industries for 18 months prior to his discharge; his last duties were as an assistant machine operator. There is no evidence in this record that his work was other than satisfactory and he seems to have received advancements in duties and wages. He was discharged solely because when he first applied for work he had recorded on an application that he had no record of arrests, when in fact he had such a record, the existence of which the employer ascertained as the result of an anonymous telephone call.

The employer's representative told Mr. Dixon that his discharge was required by company policy but that Mr. Dixon would be eligible for unemployment compensation. The company did not appear at either of two hearings conducted below and did not contest the claim for compensation. Neither the application for employment executed by Mr. Dixon, nor a record of his arrest appears in the record made below. There is in that record, however, a letter from Mr. Dixon's parole officer, attesting to the sincerity of Mr. Dixon's efforts to rehabilitate his life and commenting bitterly on the State's adding to the injury of discharge from employment, that of the denial of unemployment benefits.

The Legislature has not particularized what actions constitute willful misconduct. Courts have said that the term includes acts of wanton or willful disregard of the employer's interest, deliberate violations of the employer's rules, conduct in disregard of standards of behavior which the employer has a right to expect, and acts showing intentional and substantial disregard

[ 27 Pa. Commw. Page 11]

    of the employer's interest or the employee's duties and obligations. Warminster Fiberglass Co. v. Unemployment Compensation Board of Review, 15 Pa. Commonwealth Ct. 385, 327 A.2d 219 (1975). While any deliberately false answer to an inquiry on an employment application would appear on superficial glance to fall within one or more of the descriptions of willful misconduct, it seems to us that a profounder view suggests that the information invited by the application and falsely provided should concern matters material to the employment sought for the errant answer to be disqualifying for unemployment benefits. See Cecchini Unemployment Compensation Case, 188 Pa. Superior Ct. 247, 146 A.2d 615 (1958). The employer has the burden to prove that the employee's discharge was for an act of willful misconduct. Kentucky Fried Chicken of Altoona, Inc. v. Unemployment Compensation Board of Review, 10 Pa. Commonwealth Ct. 90, 309 A.2d 165 (1973). Mr. Dixon's employer has not contested his eligibility. Does the record affirmatively show that Mr. Dixon's arrest was material to his employment as an hourly employee of his employer's industrial ...


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