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JEAN E. SMITH v. UNEMPLOYMENT COMPENSATION BOARD REVIEW COMMONWEALTH PENNSYLVANIA. JEAN E. SMITH (01/06/77)

decided: January 6, 1977.

JEAN E. SMITH
v.
UNEMPLOYMENT COMPENSATION BOARD OF REVIEW OF THE COMMONWEALTH OF PENNSYLVANIA. JEAN E. SMITH, APPELLANT



Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Jean E. Smith, No. B-129318.

COUNSEL

Jeannie A. Barrett, 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., Kramer and Mencer, sitting as a panel of three. Opinion by Judge Kramer. Judge Mencer dissents.

Author: Kramer

[ 28 Pa. Commw. Page 99]

This is an appeal by Jean E. Smith (appellant) from an Order of the Unemployment Compensation Board of Review (Board), dated January 2, 1976, which affirmed a referee's determination that appellant had been discharged for wilful misconduct and

[ 28 Pa. Commw. Page 100]

    was ineligible for benefits under 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).

Prior to her discharge on August 26, 1975, the appellant was employed by Universal Builders as a telephone solicitor for approximately two years. She received a wage of $2.25 per hour plus a commission for each sale that resulted from any "leads" or contacts established through her work in the company's "phone room." Universal Builders also employed door-to-door canvassers, who received a higher commission than telephone solicitors but received no hourly wage.

In August of 1975, while off duty and at home one evening, the appellant was referred to a potential customer by her parents and she personally visited the prospect to verify her desire for an estimate from Universal Builders. On August the 25th, she informed her supervisor that she had a potential customer and that she would identify the prospect if she was paid a commission equal to that paid to the canvassers. After discussing the matter with her superiors, the supervisor asked appellant to identify the prospect but told her that only the normal commission for telephone solicitors would be paid. The appellant replied, "Forget it." Upon reporting for work on the following morning, the appellant was discharged.

The referee concluded that appellant's conduct was a violation of those standards of behavior that her employer could rightfully expect of her and was a breach of duty so inimical to her employer's best interests that discharge was a natural result. Conduct which evidences the disregard of standards of behavior which an employer can rightfully expect from his employes is included within the definition of wilful

[ 28 Pa. Commw. Page 101]

    misconduct. Kentucky Fried Chicken of Altoona, Inc. v. Unemployment Compensation Board of Review, 10 Pa. Commonwealth Ct. 90, 309 A.2d 165 (1973). Such conduct need not evidence an intent to wrong the employer, and a conclusion of "wilful misconduct" may be based on a finding of a conscious indifference to the duty owed the employer. Homony ...


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