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DANIEL J. CULLISON v. COMMONWEALTH PENNSYLVANIA (05/07/82)

decided: May 7, 1982.

DANIEL J. CULLISON, 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 Daniel J. Cullison, No. B-189290.

COUNSEL

Donald Marritz, for petitioner.

Charles Hasson, Associate Counsel, with him Karen Durkin, Associate Counsel, and Richard L. Cole, Jr., Chief Counsel, for respondent.

Judges Craig, MacPhail and Doyle, sitting as a panel of three. Opinion by Judge MacPhail. Judge Mencer did not participate in the decision in this case.

Author: Macphail

[ 66 Pa. Commw. Page 417]

Daniel J. Cullison (Claimant) appeals here from a decision of the Unemployment Compensation Board of Review (Board) which affirmed a referee's denial of benefits for willful misconduct based on Section 402(e) of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. ยง 802(e).

Claimant was last employed as a lift truck operator by Agway Feed Mill (Employer) from March 2, 1972 until his discharge on May 30, 1980. Claimant's duties included keeping warehouse shipping and receiving records, taking inventory on a daily basis and loading and unloading the feed. Employer alleges that Claimant was discharged for performing these duties in an unsatisfactory manner. Employer stated

[ 66 Pa. Commw. Page 418]

Claimant's performance progressively worsened over the last three years*fn1 of his employment despite numerous oral and written warnings. According to the Employer, the series of mistakes which led to Claimant's discharge were improperly filled orders. When Employer became aware of the mistakes, verbal warnings were given Claimant followed by a written warning on April 22, 1980. On the occasion of two more mistakes being made on May 27, 1980, Claimant was discharged. Claimant did not seriously contest any of Employer's testimony.

Claimant raises two issues for our resolution. First, he contends that a reversal or remand is necessary here because there was no finding of fact as to the intentional nature of Claimant's conduct rendering the record incomplete and thereby preventing this Court from performing its review function. Contrary to Claimant's position, a showing of actual intent to wrong the Employer is not required. Claimant's conscious indifference to his employment duties is enough to support a finding of willful misconduct. Eyring v. Unemployment Compensation Board of Review, 46 Pa. Commonwealth Ct. 617, 621, 407 A.2d 86, 87 (1979). Despite repeated warnings, Claimant never tried to improve his working behavior. In our opinion, this evidence a conscious indifference to his Employer's interests and his employment duties.

Secondly, Claimant argues that the Board's findings are not supported by substantial evidence and that Claimant's conduct did not rise to the level of willful misconduct. In a case such as this, where the party with the burden of proof succeeds on the merits below, our scope of review is limited to a determination

[ 66 Pa. Commw. Page 419]

    of whether substantial evidence exists in the record to support the Board's findings and whether any errors of law were committed.*fn2 Placid v. Unemployment Compensation Board of ...


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