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JOHN E. ASTARB v. COMMONWEALTH PENNSYLVANIA (04/23/80)

decided: April 23, 1980.

JOHN E. ASTARB, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT. DUQUESNE LIGHT COMPANY, INTERVENOR



Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of John E. Astarb, No. B-165421-B.

COUNSEL

John E. Astarb, petitioner, for himself.

John Kupchinsky, Assistant Attorney General, for respondent.

Diane S. Eismont, with her John A. Lee, for intervenor.

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

Author: Macphail

[ 50 Pa. Commw. Page 639]

John E. Astarb (Claimant) has filed an appeal from an order of the Unemployment Compensation Review Board (Board) which affirmed the referee's decision denying benefits 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. ยง 802(e).*fn1 We affirm.

[ 50 Pa. Commw. Page 640]

Claimant had been hired by Duquesne Light Company (Employer) on March 4, 1974 and had attained the status of senior auto body repairman on June 8, 1976. During the period between March 27, 1975 and January 28, 1978, Claimant had received numerous warnings about and suspensions resulting from his poor attitude and work performance. During the period from July 5 to July 12, 1978, Claimant took excessive amounts of time to complete job assignments because he constantly left his assigned work area without justification. Accordingly, Claimant was terminated on July 13, 1978.

The Bureau (now Office) of Employment Security (Bureau) granted benefits and the Employer appealed. The referee reversed the Bureau's determination and denied benefits. Claimant appealed. The Board reversed the referee's decision, but granted the Employer's request for a second hearing. Following the second hearing, the Board found that the Claimant had been discharged for wilful misconduct and affirmed the referee's denial of benefits.

Claimant's argument is largely an attempt to persuade this Court on credibility of the witnesses and resolution of conflicting testimony. These matters are clearly for the Board to rule upon and it is well-settled that this Court is bound by findings of the Board that are based on substantial evidence and free of any fraud. May v. Unemployment Compensation Board of Review, 39 Pa. Commonwealth Ct. 507, 395 A.2d 707 (1979); Kentucky Fried Chicken of Altoona, Inc. v. Unemployment Compensation Board of Review, 10 Pa. Commonwealth Ct. 90, 309 A.2d 165 (1973). A careful review of the record discloses that the Board's findings are based upon substantial evidence.

[ 50 Pa. Commw. Page 641]

Whether the findings support the conclusion that Claimant's conduct amounted to wilful misconduct is, however, a question of law to be resolved by this Court. O'Keefe v. Unemployment Compensation Board of ...


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