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ROBERT W. HEEFNER v. UNEMPLOYMENT COMPENSATION BOARD REVIEW COMMONWEALTH PENNSYLVANIA. ROBERT W. HEEFNER (02/10/77)

decided: February 10, 1977.

ROBERT W. HEEFNER
v.
UNEMPLOYMENT COMPENSATION BOARD OF REVIEW OF THE COMMONWEALTH OF PENNSYLVANIA. ROBERT W. HEEFNER, APPELLANT



Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Robert W. Heefner, No. B-128795.

COUNSEL

Brent A. Petrosky, for appellant.

David Bianco, Assistant Attorney General, with him Sydney Reuben, Assistant Attorney General, and Robert P. Kane, Attorney General, for appellee.

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

Author: Mencer

[ 28 Pa. Commw. Page 528]

Robert Heefner (claimant) has filed this appeal from an order of the Unemployment Compensation Board of Review (Board), which affirmed the referee's denial of benefits. The referee's decision was based on a finding of willful misconduct under Section 402(e) of the Unemployment Compensation Law.*fn1

The question of whether the claimant's conduct constituted willful misconduct is one of law, with the burden of proof on the employer. Unemployment Compensation Board of Review v. Cardellino, 24 Pa. Commonwealth Ct. 617, 357 A.2d 710 (1976). Our scope

[ 28 Pa. Commw. Page 529]

    of review here is confined to questions of law and to a determination of whether the findings of the referee and the Board are supported by substantial evidence. Sturniolo v. Unemployment Compensation Board of Review, 19 Pa. Commonwealth Ct. 475, 338 A.2d 794 (1975).

The only findings of fact made by the referee were:

1. Claimant was last employed by Curve-Inn and Restaurant, Mechanicsburg, Pennsylvania, as a bartender at an hourly rate of $3.00. His employment history covered some nine months. His last day of work was May 21, 1975.

2. On said date claimant was involuntarily terminated by reason of an excessive history of tardiness and absenteeism.

The second finding here is the only one that relates to the question of willful misconduct and, on its face, is merely a statement of the employer's reason for discharging the claimant. Careful reading discloses that it does not even ...


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