Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Martin R. Davis, No. B-17064.
James Cheslock, with him, James J. Restivo, Jr., Diane W. Perer, Reed, Smith, Shaw & McClay, and Matthew E. Jackson, Jr., Assistant University Counsel, for petitioner.
Joseph Masar, with him, Elsa Newman-Silverstine, Assistant Attorney General and John Stember, for respondents.
Judges Mencer, Blatt and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.
[ 50 Pa. Commw. Page 507]
The University of Pittsburgh (Employer) brings this appeal from a decision of the Unemployment Compensation Board of Review (Board) which affirmed a referee's order granting unemployment compensation benefits to Martin R. Davis (Claimant). Employer contends that Claimant was dismissed from his position as a janitor at the University for conduct constituting willful misconduct thereby rendering him ineligible for unemployment compensation benefits pursuant to Section 402(e) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L.  2897, as amended, 43 P.S. § 802(e). The Bureau (now Office) of Employment Security agreed with Employer and denied benefits. The referee and the Board found no willful misconduct, however, and awarded benefits to Claimant. Employer raises two issues for our consideration: whether the Board erred as a matter of law when it determined that Claimant should not be disqualified
[ 50 Pa. Commw. Page 508]
from benefits because of willful misconduct and whether that decision is contrary to the evidence presented. We affirm the order of the Board.
It is well established that
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 right-fully expect from his employer, or (4) negligence which manifests culpability, wrongful intent, evil design, or intentional and substantial disregard for the employer's interests or the employee's duties and obligations.
[ 50 Pa. Commw. Page 509]
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). 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), and whether one's actions constitute willful misconduct is a question of law subject to review by this Court, Murraysville Telephone Co. v. Unemployment Compensation Board of Review, 41 Pa. Commonwealth Ct. 35, 37, 398 A.2d 250, 251 (1979). Where, as here, employer 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). We have defined capricious disregard as the "willful and deliberate disregard of competent testimony and relevant evidence which one of ordinary intelligence could not possibly have avoided in reaching a result." Potts v. Unemployment Compensation Page 509} Board of Review, 46 Pa. Commonwealth Ct. 407, 410, 406 A.2d 585, 586 (1979).
The Board made four formal findings of fact in this case: (1) Claimant was last employed by Employer as a custodian on June 23, 1978 at a rate of $4.67 per hour, (2) Claimant was discharged from work for "alleged low productivity, his attitude, and allegedly failing to comply with departmental policies," (3) Claimant's work was not "subject to low productivity" and he made an effort to comply with departmental policies, and (4) Claimant is mentally retarded and he performed his duties to the best of his ...