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CARL LAKE v. COMMONWEALTH PENNSYLVANIA (12/20/79)

decided: December 20, 1979.

CARL LAKE, SR., 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 Carl Lake, Sr., No. B-164415.

COUNSEL

John L. Walder, with him, Harvey F. Strauss, for petitioner.

Charles G. Hasson, Assistant Attorney General, with him, Edward G. Biester, Jr., Acting Attorney General, for respondent.

Judges Crumlish, Jr., Wilkinson, Jr. and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 48 Pa. Commw. Page 139]

Carl Lake, Sr. (Petitioner) brings this appeal from a decision of the Unemployment Compensation Board of Review (Board) which affirmed a referee's order denying his unemployment compensation benefits. The referee concluded and the Board agreed that Petitioner was discharged from his employment as an equipment and glassware worker for Merck, Sharp, and Dohme (Employer) because of willful misconduct thereby rendering him ineligible for unemployment compensation benefits pursuant to Section 402(e) of the Unemployment Compensation Law, Act of December

[ 48 Pa. Commw. Page 1405]

, 1936, Second Ex. Sess., P.L. [1937] 2897, as amended, 43 P.S. ยง 802(e). Petitioner raises two issues for our consideration: whether the Board capriciously disregarded competent testimony and whether his dismissal was properly founded on willful misconduct. For the reasons which follow, we affirm the Board's order.

[ 48 Pa. Commw. Page 141]

In a case such as this, the burden of proving willful misconduct is on the employer. Gane v. Unemployment Compensation Board of Review, 41 Pa. Commonwealth Ct. 292, 293, 398 A.2d 1110, 1111 (1979); Roach v. Unemployment Compensation Board of Review, 31 Pa. Commonwealth Ct. 424, 426, 376 A.2d 314, 315 (1977). Where, however, an employee attempts to justify the alleged misconduct by a showing of good cause, the employee bears the burden of proving such good cause. Gane, supra, at 293, 398 A.2d at 1111. When the party bearing the burden of proof prevails before the Board, we must determine on appeal whether an error of law has been committed and whether any necessary finding of fact is unsupported by substantial evidence in the record. Roach, supra, at 427, 376 A.2d at 315; Unemployment Compensation Board of Review v. Tumolo, 25 Pa. Commonwealth Ct. 264, 267, 360 A.2d 763, 765 (1976). Where the party with the burden of proof does not prevail before the Board, our scope of review is limited to determining whether the findings of fact are consistent with each other and with the conclusions of law and whether they can be sustained without a capricious disregard of competent evidence. Aluminum Co. of America v. Theis, 11 Pa. Commonwealth Ct. 587, 590, 314 A.2d 893, 895 (1974). Employer prevailed before the Board and, therefore, is entitled to the benefit of any inferences which can be reasonably and logically drawn from the evidence on the record. Nehi Bottling Co. v. Unemployment Compensation Page 141} Board of Review, 27 Pa. Commonwealth Ct. 251, 253, 366 A.2d 594, 595 (1976). Of course, questions of credibility, resolution of conflicts in the evidence presented, and a determination of the weight to be given the evidence are matters for the Board to determine. Roach, supra.

Petitioner had worked for Employer for approximately five years. During at least part of that time, Petitioner, who is black, believed that he was the target of discriminatory treatment by his immediate supervisor, William Maule (Maule). On February 24, 1978, Petitioner spoke to his department head Dr. Fisher (Fisher) and made a threat on Maule's life. On March 6, 1978, Employer, citing Petitioner's poor attendance record and his threat against Maule, discharged him. Petitioner's attendance record is no longer in issue in this matter,*fn1 so we will confine our analysis to the question of whether his threat against Maule constituted willful misconduct and a basis for the denial of unemployment compensation benefits.

As we stated in our opinion in Kentucky Fried Chicken of Altoona, Inc. v. Unemployment Compensation Board of Review, 10 Pa. Commonwealth Ct. 90, 97, 309 A.2d 165, 168-69 (1973):

For behavior to constitute wilful misconduct, it must evidence (1) the wanton and wilful disregard of the employer's interest, (2) the deliberate violation of rules, (3) the disregard of standards of behavior which an employer can rightfully expect from his employe, or (4) negligence which manifests culpability, wrongful intent, evil design, or intentional and ...


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