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PENNSYLVANIA LIQUOR CONTROL BOARD v. UNEMPLOYMENT COMPENSATION BOARD REVIEW COMMONWEALTH PENNSYLVANIA. PENNSYLVANIA LIQUOR CONTROL BOARD (02/18/77)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: February 18, 1977.

PENNSYLVANIA LIQUOR CONTROL BOARD
v.
UNEMPLOYMENT COMPENSATION BOARD OF REVIEW OF THE COMMONWEALTH OF PENNSYLVANIA. PENNSYLVANIA LIQUOR CONTROL BOARD, APPELLANT

Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Leon T. Clark, No. B-128837.

COUNSEL

Harry Bowytz, Chief Counsel, with him James P. Deeley, Assistant Attorney General, for appellant.

Susan Shinkman, Assistant Attorney General, with her Sydney Reuben, Assistant Attorney General, for appellee.

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

Author: Blatt

[ 29 Pa. Commw. Page 96]

The Pennsylvania Liquor Control Board (employer) has appealed from the decision of the Unemployment Compensation Board of Review (Board). The Board had reversed a referee's decision which denied

[ 29 Pa. Commw. Page 97]

    benefits to the claimant, and had ordered that benefits be allowed.

The claimant was discharged for misappropriating Commonwealth funds, and this discharge was affirmed by the Civil Service Commission.*fn1 When the claimant applied for unemployment compensation benefits, the employer challenged his eligibility citing 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), which provides, inter alia, 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. . . .

The Bureau of Employment Security (Bureau) denied benefits and, after a hearing, the referee affirmed that denial, finding that the claimant had been guilty of willful misconduct. The claimant appealed to the Board which, after reviewing the evidence, found that the "claimant did not misappropriate Commonwealth funds or violate sales procedure," reversed the referee, and granted benefits. This appeal followed.

It was the employer's burden to prove that the discharged employee was guilty of willful misconduct, Unemployment Compensation Board of Review v. Bacon, 25 Pa. Commonwealth Ct. 583, 361 A.2d 505

[ 29 Pa. Commw. Page 98]

(1976), and where, as here, the Board's decision is against the party with the burden of proof, our scope of review is limited, in the absence of fraud or an error of law, to a determination of whether or not the findings of fact are consistent with each other and with the Board's conclusion of law, and whether or not the Board's order can be sustained without a capricious disregard of competent evidence. Unemployment Compensation Board of Review v. Patsy, 21 Pa. Commonwealth Ct. 341, 345 A.2d 785 (1975).

Because misappropriation of funds clearly would constitute willful misconduct, Unemployment Compensation Board of Review v. Houp, 20 Pa. Commonwealth Ct. 111, 340 A.2d 588 (1975), the only issue presented here is whether or not there was substantial evidence to support the Board's finding.

It is clear that "the Board has the express power to affirm, modify, or reverse the determination of the referee on the basis of evidence previously submitted in [a] case . . . and that the Board is the ultimate fact-finding body empowered to resolve conflicts in evidence, to determine the credibility of witnesses, and to determine the weight to be accorded the evidence." Unemployment Compensation Board of Review v. Wright, 21 Pa. Commonwealth Ct. 637, 639, 347 A.2d 328, 329 (1975). (Citations omitted.)

The employer presented testimony and introduced into evidence the transcript of the hearing before the Civil Service Commission in support of its charge of willful misconduct. The claimant, by his own testimony, attempted to rebut the employer's evidence, and he denied the charges. Simply stated, the situation here is that the Board did not believe that the employer's testimony and evidence established that the claimant had misappropriated funds, and the employer, therefore, can be said to have failed to sustain its

[ 29 Pa. Commw. Page 99]

    burden of proof. The claimant's denial of the charges is substantial evidence*fn2 which the Board could have believed and here, in fact, did choose to believe in making its crucial finding. Lebanon County Board of Assistance v. Unemployment Compensation Board of Review, 16 Pa. Commonwealth Ct. 558, 332 A.2d 888 (1975).

We, therefore, affirm the order of the Board.

Order

And Now, this 18th day of February, 1977, the order of the Unemployment Compensation Board of Review, dated December 2, 1975, is affirmed.

Disposition

Affirmed.


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