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EDDIE EL v. COMMONWEALTH PENNSYLVANIA (07/24/81)

decided: July 24, 1981.

EDDIE EL, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeal from the Order of the Unemployment Compensation Board of Review in the case of In Re: Claim of Eddie El, No. B-176110.

COUNSEL

Lettie D. Newkirk, with her Oscar N. Gaskins, for petitioner.

William J. Kennedy, Assistant Attorney General, with him Elsa D. Newman-Silverstine, Assistant Attorney General, Richard Wagner, Chief Counsel, and Harvey Bartle, III, Acting Attorney General, for respondent.

Judges Blatt, MacPhail and Williams, Jr., sitting as a panel of three. Opinion by Judge Blatt. Judge Wilkinson, Jr. did not participate in the decision in this case.

Author: Blatt

[ 61 Pa. Commw. Page 59]

The claimant*fn1 appeals here from an order of the Board*fn2 which affirmed a referee's denial of benefits under Section 402(e) of the Pennsylvania Unemployment Compensation Law (Act)*fn3 because of willful misconduct.*fn4

During his nearly six years of employment as a bus driver for the Southeastern Pennsylvania Transportation Authority, the claimant had received several warnings and two suspensions for violating the employer's rules, and, following supervisors' reports of three separate infractions during his last full week of work,*fn5 he was suspended pending discharge. The employer's representative (representative) then conducted two hearings at which the claimant, in the presence of his union delegates, was interviewed as to the reports, and his overall record was reviewed. He was then discharged.

[ 61 Pa. Commw. Page 60]

At the hearing before the referee, the representative testified that the claimant had been discharged because of a generally substandard record culminating in the commission of the three dischargeable offenses. He further testified that he had not witnessed the three incidents and that his knowledge of them was based solely on the supervisors' reports and the claimant's responses to them. The claimant's attorney objected to the representative's testimony as hearsay. An interoffice memorandum of May 3, 1979, in which the representative had outlined the events leading up to the claimant's discharge was also received into evidence over the objections of the claimant's attorney. The referee and the Board denied benefits and this appeal followed.

Section 402(e) of the Act provides that an employee shall be ineligible for unemployment compensation benefits during any week in which "his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work" and whether or not the claimant's conduct rises to the level of willful misconduct is a question of law. Kentucky Fried Chicken of Altoona, Inc. v. Unemployment Compensation Board of Review, 10 Pa. Commonwealth Ct. 90, 309 A.2d 165 (1973). For behavior to constitute willful misconduct it must evidence:

[T]he wanton and willful disregard of an employer's interest, a deliberate violation of the employer's rules, a disregard of expected standards of behavior, or negligence manifesting culpability, wrongful intent, evil design or an intentional disregard of the employer's interest or the employee's duties or obligations to the employer.

Lytle v. Unemployment Compensation Board of Review, 36 Pa. Commonwealth Ct. 77, 80, ...


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