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MOORE'S HAULING v. COMMONWEALTH PENNSYLVANIA (10/17/80)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: October 17, 1980.

MOORE'S HAULING, INC., 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 Frank G. Van Horn, Jr., No. B-171530.

COUNSEL

Richard F. Faux, with him George W. Tracy, Tracy & McNamee, for petitioner.

Stephen B. Lipson, Assistant Attorney General, with him Richard Wagner, Chief Counsel, and Edward G. Biester, Jr., Attorney General, for respondent.

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

Author: Craig

[ 54 Pa. Commw. Page 290]

In this unemployment compensation appeal, the employer,*fn1 questions the allowance of benefits to the claimant*fn2 by the board,*fn3 which reversed the referee's conclusion that claimant, a trucking company dispatcher, was ineligible because discharged for willful misconduct.*fn4

Matters such as the alleged failure of claimant to clean his work area to the satisfaction of the employer, and claimant's procedures with respect to shipping overvalued freight, have been fairly characterized by

[ 54 Pa. Commw. Page 291]

    the employer's brief as "occasions in which claimant did not perform his duties properly," thus indicating performance properly classifiable as incompetence rather than willful misconduct,*fn5 and the referee therefore properly did not adopt those matters as reasons for his denial of benefits.

The charge identified by the employer's brief as the basis for denial of benefits, that claimant extracted pay raise information from company wastebaskets and spread gossip on such matters, was presented only by hearsay testimony, without corroboration, and was therefore also properly ignored by the referee, as well as by the board.*fn6

The final charge relates to claimant's entry into the shop area of the employer's premises after being warned not to do so, but the board found that claimant thereafter did not go into the shop area without permission except to answer telephone calls from drivers. At argument, counsel for the employer was unable to take serious issue with that finding of the board. The board's decision thus shows sufficient justification for claimant going into the shop area after being warned on the point.*fn7 We therefore cannot hold that the board capriciously disregarded competent evidence in reaching its conclusion that the employer failed to sustain the burden of establishing willful misconduct.*fn8

Accordingly, the board's decision is affirmed.

[ 54 Pa. Commw. Page 292]

Order

And Now, this 17th day of October, 1980, the decision and order of the Unemployment Compensation Board of Review at No. B-171530, dated April 26, 1979, is affirmed.

Disposition

Affirmed.


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