Appeal from the Order of the Unemployment Compensation Board of Review in the case of In Re: Claim of Leroy F. Placid, No. B-176243.
Arthur L. Gutkin, for petitioner.
Francine Ostrovsky, Assistant Attorney General, with her Richard Wagner, Chief Counsel, and Harvey Bartle, III, Attorney General, for respondent.
Judges Mencer, Rogers and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail. Judge Wilkinson, Jr. did not participate in the decision in this case.
[ 58 Pa. Commw. Page 252]
Leroy F. Placid (Petitioner) seeks review of Decision No. B-176243 of the Unemployment Compensation Board of Review (Board) dated September 28, 1979 which affirmed a referee's order denying the Petitioner unemployment benefits.
The facts of this case are uncontested. The Petitioner was last employed as a department manager for Clemens Market (Employer) for a period of six years. His last day of work was June 28, 1979. He applied to the Office of Employment Security (Office) for benefits. The Office denied benefits under Section 402(e) of the Unemployment Compensation Law (Law).*fn1 The Petitioner appealed. After a hearing at which both the Petitioner and an Employer representative appeared and testified, the referee concluded and the Board agreed that the Petitioner had been
[ 58 Pa. Commw. Page 253]
discharged from his employment because of willful misconduct. The Petitioner appealed to this Court.
It is well established that the burden of proving willful misconduct is on the Employer. Lake v. Unemployment Compensation Board of Review, 48, Pa. Commonwealth Ct. 138, 409 A.2d 126 (1979). Where, as here, the party bearing the burden of proof prevails before the Board, our scope of review on appeal is to determine whether an error of law has been committed and whether any necessary finding of fact is unsupported by substantial evidence. Lake, supra.
Willful misconduct is a question of law. Boyer v. Unemployment Compensation Board of Review, 51 Pa. Commonwealth Ct. 191, 415 A.2d 425 (1980). As we stated in our opinion in 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):
For behavior to constitute wilful misconduct, it must evidence (a) 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 rightfully expect from his employe, 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.
"It is only when an employee's actions are justifiable and reasonable under the circumstances that they will not be regarded as willful misconduct." (Emphasis in original.) Lake, supra at 143, 409 A.2d at 129. Where an employee attempts to justify the alleged misconduct by showing good cause, the employee bears the burden of proving good cause. Gane v. ...