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LOUIS DIGIOVANNI v. COMMONWEALTH PENNSYLVANIA (08/07/79)

decided: August 7, 1979.

LOUIS DIGIOVANNI, 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 Louis DiGiovanni, No. B-154165.

COUNSEL

Louis F. Hinman, III, with him Penny, Hinman & Bevilacqua, for appellant.

Charles G. Hasson, Assistant Attorney General, with him Gerald Gornish, Attorney General, for appellee.

Judges Mencer, Rogers and Craig, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 44 Pa. Commw. Page 607]

Louis DiGiovanni (claimant) has appealed an order of the Unemployment Compensation Board of Review (Board) denying him benefits because of willful misconduct pursuant to Section 402(e) of the Unemployment Compensation Law (Act), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. ยง 802(e). We affirm.

Claimant was employed intermittently by Michelfelder's Sausage Shops (Michelfelder's) as the supervisor of its import department for approximately two years prior to his discharge. On September 30, 1977, claimant was instructed by his supervisor, Mr. Burke, to accompany a truck driver to a meat plant Michelfelder's was purchasing to pick up a shelf for use in the claimant's department. Claimant refused the assignment on the basis that the meat plant was infested with insects and that on claimant's last visit to the plant a "bug" had "jumped" on him. Mr. Burke repeated his request, telling claimant he had a choice, either to perform the task or to leave. Claimant chose to leave.

A referee denied benefits on the basis of Section 402(b)(1) of the Act (voluntarily leaving work without cause of a compelling and necessitous nature), after a hearing at which the employer failed to appear. The Board affirmed the referee but predicated its decision on a finding of willful misconduct.*fn1 This appeal followed.

Claimant argues that, since the employer has the burden of proving willful misconduct, the Board may not deny a claimant benefits if an employer fails to

[ 44 Pa. Commw. Page 608]

    appear before either the referee or the Board and present evidence of willful misconduct. We disagree.

We have found numerous decisions where benefits were denied although the employer or one of his necessary witnesses has failed to appear at a Section 402(e) hearing. See, e.g., Belton v. Unemployment Compensation Board of Review, Pa. Commonwealth Ct. , 402 A.2d 571 (1979); Bracy v. Unemployment Compensation Board of Review, 34 Pa. Commonwealth Ct. 173, 382 A.2d 1295 (1978); Turner v. Unemployment Compensation Board of Review, 33 Pa. Commonwealth Ct. 195, 381 A.2d 223 (1978); Costa v. Unemployment Compensation Board of Review, 31 Pa. Commonwealth Ct. 7, 374 A.2d 1012 (1977); Pilchesky v. Unemployment Compensation Board of Review, 29 Pa. Commonwealth Ct. 200, 370 A.2d 763 (1977); Philadelphia Coca-Cola Bottling Co. v. Unemployment Compensation Board of Review, 12 Pa. Commonwealth Ct. 557, 317 A.2d 50 (1974); see also McLean v. Unemployment Compensation Board of Review, 26 Pa. Commonwealth Ct. 270, 363 A.2d 848 (1976), rev'd on other grounds, 476 Pa. 617, 383 A.2d 533 (1978). None of these decisions resulted in an automatic reversal of a Board decision for the employer or the granting of benefits to the employee simply because the employer failed to appear at the hearing or present any competent evidence of willful misconduct. On the contrary, the employer's burden was carried by the claimant's own testimony, either in whole, Turner, supra, or in part, by corroborating ...


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