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GEORGE J. MILLER v. COMMONWEALTH PENNSYLVANIA (09/10/79)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: September 10, 1979.

GEORGE J. MILLER, 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 Diana L. Dauber, No. B-160618.

COUNSEL

John R. Banke, with him Bart M. Beier, for petitioner.

Elsa D. Newman, Assistant Attorney General, with her Richard Wagner, Assistant Attorney General, Chief Counsel, and Edward G. Biester, Jr., Attorney General, for respondent.

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

Author: Craig

[ 45 Pa. Commw. Page 540]

George J. Miller (employer) appeals from a decision of the Unemployment Compensation Board of Review (Board) which granted benefits to claimant Diana L. Dauber, by reversing the referee's denial of benefits under Section 402(e) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended (Law), 43 P.S. ยง 802(e), the "willful misconduct" disqualification.*fn1

We affirm the Board.

[ 45 Pa. Commw. Page 541]

This court has repeatedly held that willful misconduct, to meet the statutory standards, must reflect more than inability to perform, lack of experience, or marginal enthusiasm for the employer's business. Unemployment Compensation Board of Review v. Kullen, 21 Pa. Commonwealth Ct. 488, 346 A.2d 926 (1975). Willful misconduct is established only where the acts complained of amount to a detrimental disregard of the employer's interests, or are substantially inimical to those interests. Kullen, supra; Harbutz v. Unemployment Compensation Board of Review, 10 Pa. Commonwealth Ct. 235, 309 A.2d 840 (1973).

The record in this case reveals that the claimant's relations with her employer and co-workers were not ideal. Her four-month tenure with the employer was punctuated by several incidents of disharmony, alternatively characterized by the employer as claimant's recalcitrance and reluctance, and by the claimant herself as minor personal disputes or simply expressed dissatisfaction with work assignments or workload allocation. The employer's allegations of instances of outright refusal to perform assignments and deliberate making of errors so as to avoid similar future assignments are squarely contested and denied by claimant's own testimony.

Therefore we cannot hold as a matter of law that the Board was in error in finding that the claimant performed to the best of her ability. The evidence presented at the hearing was conflicting; it is not this court's function to balance that evidence. Questions of credibility and the resolution of evidentiary conflicts are within the sound discretion of the Board, and are not subject to re-evaluation on judicial review. Affalter v. Unemployment Compensation Board of Review, 40 Pa. Commonwealth Ct. 482, 397 A.2d 863

[ 45 Pa. Commw. Page 542]

(1979); Simet v. Unemployment Compensation Board of Review, 40 Pa. Commonwealth Ct. 85, 396 A.2d 893 (1979).

We hold that the Board's decision is founded on substantial evidence. We therefore affirm the award of unemployment benefits to the claimant.

Order

And Now, this 10th day of September, 1979, the order of the Unemployment Compensation Board of Review dated June 23, 1978, granting benefits to Diana L. Dauber, is hereby affirmed.

Disposition

Affirmed.


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