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BOROUGH TYRONE v. COMMONWEALTH PENNSYLVANIA (06/04/80)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: June 4, 1980.

BOROUGH OF TYRONE, 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 John R. Thomas, No. B-173457.

COUNSEL

James H. Bigelow, for petitioner.

Elsa D. Newman-Silverstine, Assistant Attorney General, with her Richard Wagner, Chief Counsel, and Edward G. Biester, Jr., Attorney General, for respondent.

Judges Wilkinson, Jr., Craig and Williams, Jr., sitting as a panel of three. Opinion by Judge Wilkinson, Jr.

Author: Wilkinson

[ 52 Pa. Commw. Page 19]

This is an appeal by the Borough of Tyrone (borough) from a decision of the Unemployment Compensation Board of Review (Board) awarding benefits to claimant following his discharge from the Tyrone Police Department. We affirm.

Claimant had been employed by the borough as a patrolman since May 1, 1972. Based on charges made by the chief of police that claimant had been observed sleeping on duty, the borough council converted an earlier suspension into a formal dismissal on February 12, 1979. The Bureau of Employment Security*fn1 found claimant ineligible for benefits due to conduct deemed willful misconduct under Section 402(e) of the

[ 52 Pa. Commw. Page 20]

Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. ยง 802(e). Following two hearings, the Board concluded otherwise and made the award of benefits from which the borough here appeals.*fn2

As this Court has previously held, sleeping on the job may constitute willful misconduct absent a showing that employer either permits or tolerates such conduct. Markley v. Unemployment Compensation Board of Review, 47 Pa. Commonwealth Ct. 148, 407 A.2d 144 (1979). The Board here, however, specifically found that claimant was not sleeping while on duty as charged.*fn3

Since the borough as employer was the burdened party on the issue of willful misconduct and did not prevail before the Board "our scope of review is limited to a determination of whether the Board's findings of fact can be sustained absent a capricious disregard of competent evidence." Sun Oil Co. v. Unemployment Compensation Board of Review, 48 Pa. Commonwealth Ct. 21, 25, 408 A.2d 1169, 1170 (1979). (Footnote omitted.) While there was testimony offered before the hearing officer to substantiate the borough's

[ 52 Pa. Commw. Page 21]

    charge, claimant specifically and emphatically denied sleeping on duty; the Board obviously chose to believe the police officer's version of the events. To accord greater credibility to one witness' testimony than to that presented by others is simply a manifestation of the Board's fact-finding role and does not constitute a capricious disregard of evidence.

Accordingly, we will enter the following

Order

And Now, June 4, 1980, the order of the Unemployment Compensation Board of Review at Decision No. B-173457, dated June 21, 1979 is hereby affirmed.

Disposition

Affirmed.


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