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TERRY L. BOYER v. COMMONWEALTH PENNSYLVANIA (05/07/80)

decided: May 7, 1980.

TERRY L. BOYER, 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 Terry L. Boyer, No. B-168711.

COUNSEL

Michael Goldberg, with him, Marion Cocose and Marian Frankstone, for petitioner.

Charles G. Hasson, Assistant Attorney General, with him, Richard Wagner, Chief Counsel, and Edward G. Biester, Jr., Attorney General, for respondent.

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

Author: Macphail

[ 51 Pa. Commw. Page 193]

Terry L. Boyer (Petitioner) brings this appeal from a decision of the Unemployment Compensation Board of Review (Board) which affirmed a referee's order denying him unemployment compensation benefits. The referee and before her the Bureau (now Office) of Employment Security had determined that Claimant was discharged from his employment with the City of Lancaster (Employer) because of willful misconduct and, therefore, was not eligible for unemployment compensation benefits pursuant to Section 402(e) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. [1937] 2897, as amended, 43 P.S. ยง 802(e). On appeal, Claimant raises three issues for our consideration: whether he was discharged from his employment as a result of the exercise of his First Amendment right to free speech; whether the conduct resulting in his dismissal constituted wilful misconduct as a matter of law; and whether the Board's findings of fact were sufficient to support the denial of benefits. For the reasons which follow, we affirm.

Claimant was employed as a Traffic Technician I by Employer. His last day of work was May 17, 1978 and his final rate of pay was $165 per week. During his period of employment, Claimant received a number of written memos from his supervisor, Roy Falcone, concerning his job performance. In response to the final memo, Claimant wrote a letter to Falcone

[ 51 Pa. Commw. Page 194]

    entitled "Unjustified Memos."*fn1 Claimant also sent copies of his letter to the Mayor of Lancaster, the City's Director of Public Works, the City's Personnel Manager, and the President of Local 1896 of the

[ 51 Pa. Commw. Page 195]

American Federation of State, County, and Municipal Employees. Shortly after he received the copy of the letter, the Personnel Manager discharged Claimant.

The burden of proving willful misconduct is on the employer. Roach v. Unemployment Compensation Board of Review, 31 Pa. Commonwealth Ct. 424, 426, 376 A.2d 314, 315 (1977). Where, as here, 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. Roach at ...


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