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RADIO STATION WVCH v. COMMONWEALTH PENNSYLVANIA (06/12/81)

decided: June 12, 1981.

RADIO STATION WVCH, 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 Paulyne Haber, No. B-181149.

COUNSEL

Joseph F. Lawless, Jr., Petrikin, Wellman, Damico & Carney, for petitioner.

Francine Ostrovsky, Associate Counsel, with her, Richard Wagner, Chief Counsel, and Richard L. Cole, Jr., Chief Counsel of Department of Labor and Industry, for respondent.

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

Author: Macphail

[ 60 Pa. Commw. Page 24]

This is an appeal by Radio Station WVCH from an order of the Unemployment Compensation Board of Review (Board) reversing the referee and granting Paulyne Haber (Claimant) benefits under Section 402(e) of the Unemployment Compensation Law (Law).*fn1

Claimant was last employed as a secretary by Radio Station WVCH (Employer) for ten years, at a final weekly salary of $120.00, with her last day of work being August 1, 1979. The Board found that in the last few months of employment, Claimant had received memos and instructions from the station manager not to answer the telephone nor to work on a certain account. The Board made a finding that Claimant was discharged for failing to type some letters and failing to provide announcements for the "Morning Cheer" program. The Board determined,

[ 60 Pa. Commw. Page 25]

    however, that Claimant had typed all letters assigned to her and had given Employer all the work she had on "Morning Cheer." Apparently Claimant was not told she was being fired for tardiness, even though she was tardy on her last day. According to the Board, Claimant on occasion used her own judgment regarding her manner of performance, but she worked to the best of her ability and observed her Employer's instructions.

On the basis of these findings, the Board concluded that Employer had not sustained its burden of proving willful misconduct on the part of Claimant. The Board explained that in its opinion Employer "experienced personality clash" with the Claimant and that Claimant did not act in deliberate disregard of Employer's instructions nor of Employer's best interests.

Since Employer had the burden, of proving willful misconduct and did not prevail before the Board, our review of the Board's decision is limited to questions of law and to a determination of whether the Board's findings of fact can be sustained without a capricious disregard of competent evidence. Houff Transfer, Inc. v. Unemployment Compensation Board of Review, 40 Pa. Commonwealth Ct. 238, 397 A.2d 42 (1979).

Employer argues here that the Board capriciously disregarded competent evidence in the record which substantiated numerous occasions on which Claimant deliberately disregarded Employer's instructions. Employer contends furthermore that the Claimant admitted to having a record of tardiness (5 days) in the last two weeks of employment, about which she was warned and that these facts contradict the Board's finding that Claimant was tardy on her last day of work, but that she was not told ...


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