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EDWARD D. THOMAS v. COMMONWEALTH PENNSYLVANIA (01/22/80)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: January 22, 1980.

EDWARD D. THOMAS, 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 Edward D. Thomas, Sr., No. B-156297.

COUNSEL

Sandra L. Smales, with her Mark A. Senick, for petitioner.

Gary Marini, Assistant Attorney General, with him James Bradley, Assistant Attorney General, Richard Wagner, Chief Counsel and Edward G. Biester, Jr., Assistant Attorney General, for respondent.

Judges Wilkinson, Jr., Blatt and Craig, sitting as a panel of three. Opinion by Judge Wilkinson, Jr. This decision was reached prior to the expiration of the term of office of Judge DiSalle.

Author: Wilkinson

[ 48 Pa. Commw. Page 631]

Petitioner (claimant) was employed by respondent (hotel) in excess of 17 years. At the time of his termination by the hotel management, he was head morning chef. On the morning of June 16, 1977, the hotel restaurants were quite busy and service of orders in the kitchen was extremely slow, resulting in many dissatisfied customers. The hotel management, upon reviewing the situation, determined that the problem was caused by a deliberate slowdown in the kitchen

[ 48 Pa. Commw. Page 632]

    and fixed responsibility for the occurrence on the claimant. He was discharged the next day.

Claimant applied for unemployment compensation benefits, which were granted by the Bureau of Employment Security (Bureau).*fn1 The hotel appealed and a hearing was held, after which the referee reversed the Bureau's determination and denied benefits on the basis of claimant's willful misconduct under Section 402(e) of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e). Claimant appealed to the Unemployment Compensation Board of Review (Board), which issued an order disallowing further appeal pursuant to Section 502 of the Law, 43 P.S. § 822. Claimant appeals the Board's order to this Court.

[ 48 Pa. Commw. Page 633]

An abundance of testimony was offered at the hearing regarding whether or not the claimant had engaged in an intentional slowdown and whether or not his conduct was detrimental to the best interests of his employer. The hotel argued that the claimant's delay in processing orders and his inability to process certain orders caused financial detriment to his employer and was the result of the claimant's intentional actions and not merely of the extraordinary demands of the day. Although the claimant denied all misconduct and offered testimony to rebut the employer's claims, the referee and the Board chose to believe the employer's witnesses.*fn2 Such conflicts in testimony are properly resolved by the referee and the Board. Stewart v. Page 633} Unemployment Compensation Board of Review, 43 Pa. Commonwealth Ct. 279, 402 A.2d 302 (1979).

After a complete examination of the facts, the referee and the Board determined that claimant's actions in disregard of expected standards of behavior rose to the level of willful misconduct as contemplated by Section 402(e) of the Law. We find substantial evidence in the record to support such a conclusion.

Accordingly, we will enter the following

Order

And Now, January 22, 1980, the order of the Unemployment Compensation Board of Review, Decision No. B-156297, dated April 13, 1978, denying benefits to the claimant, is affirmed.

This decision was reached prior to the expiration of the term of office of Judge DiSalle.

Disposition

Affirmed.


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