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STEPHEN E. TUNDEL v. COMMONWEALTH PENNSYLVANIA (07/18/79)

decided: July 18, 1979.

STEPHEN E. TUNDEL, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Stephen E. Tundel, No. B-152265.

COUNSEL

William J. Fries, for petitioner.

Michael Klein, Assistant Attorney General, for respondent.

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

Author: Crumlish

[ 44 Pa. Commw. Page 313]

The Unemployment Compensation Board of Review (UCBR) reversed a referee and concluded that Stephen Tundel had been discharged for willful misconduct under Section 402(e) of the Unemployment Compensation Law, 43 P.S. ยง 802(e),*fn1 and was ineligible for compensation.

We reverse.

On June 13, 1977, Tundel's employment as a counselor at an institution housing juvenile males adjudicated delinquent was terminated. Two evidentiary hearings*fn2 resulted in UCBR's findings that Tundel received

[ 44 Pa. Commw. Page 314]

    a warning in March, 1977, after missing one day's work; that, after a second unauthorized absence, he was suspended for three days in April, 1977; that he had been seen sleeping on duty "during the later [sic] part of May;" and that he had been late for work "on occasion."

Our scope of review is restricted to questions of law. We may not substitute UCBR's factual findings where supported by substantial evidence nor may we infer findings not actually made by UCBR. Orloski v. Unemployment Compensation Board of Review, 38 Pa. Commonwealth Ct. 174, 392 A.2d 333 (1978).

But we may determine whether the facts found by UCBR are of sufficient specificity to support the legal conclusion of willful misconduct as that phrase is used in Section 402(e). Unemployment Compensation Board of Review v. Williams, 23 Pa. Commonwealth Ct. 188, 350 A.2d 882 (1976); Unemployment Compensation Board of Review v. Dravage, 23 Pa. Commonwealth Ct. 636, 353 A.2d 88 (1976).

Mere dissatisfaction with an employee's performance will not disqualify the employee from receiving benefits upon his discharge; the employer must shoulder his burden of proof by demonstrating that a specific transgression or amalgam of transgressions amounting to willful misconduct actually precipitated the employee's dismissal. See Houff Transfer, Inc. v. ...


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