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TERRY L. BOYER v. UNEMPLOYMENT COMPENSATION BOARD REVIEW (12/30/82)

decided: December 30, 1982.

TERRY L. BOYER, APPELLANT,
v.
UNEMPLOYMENT COMPENSATION BOARD OF REVIEW



No. 80-3-673, Appeal from the Order of the Commonwealth Court, dated May 7, 1980, at No. 460 C.D. 1979, affirming the decision of the Unemployment Compensation Board of Review in Decision No. B-168711, Appeal No. B-78-5-F-380.

COUNSEL

Michael Goldberg, Marion Frankston, Harrisburg, for appellant.

Charles Hasson, Asst. Atty. Gen., for appellee.

O'Brien, C.j., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ. Flaherty, J., files a dissenting opinion in which McDermott, J., joins.

Author: O'brien

[ 499 Pa. Page 553]

OPINION OF THE COURT

Appellant, Terry Boyer, was discharged from his employment with the City of Lancaster on May 18, 1978. Following a hearing, an unemployment compensation referee denied appellant's request for benefits on the ground of willful misconduct under § 402(e) of the Unemployment Compensation Law, 43 P.S. § 802(e). The denial of benefits was affirmed by the Unemployment Compensation Board of Review [hereinafter cited as "Board"], and thereafter by the Commonwealth Court. Boyer v. Unemployment Compensation Board of Review, 51 Pa. Commw. 191, 415 A.2d 425 (1980). We granted appellant's petition for allowance of appeal.

Boyer was discharged from his employment because he wrote a letter to his supervisor, Roy Falcone, and sent copies to four other Lancaster employees. The letter, titled "Unjustified Memos", was a response to a number of memoranda

[ 499 Pa. Page 554]

    appellant had received from Falcone in the preceding eighteen-month period. Appellant had received a memorandum from Falcone dated November 3, 1977, alleging that Boyer had engaged in illegal conduct in his use of a vehicle owned by the City of Lancaster. A copy of this memorandum was placed in appellant's file. Appellant received a second memorandum from Falcone, also dated November 3, 1977, alleging that appellant had misused a city vehicle, and further threatening appellant with suspension. Copies of this memorandum were sent to the personnel department and to Lee Mowery, the union local president, and one copy was placed in appellant's file.

One month later, Mr. Boyer received another letter, dated December 5, 1977, in which appellant was informed of a one day suspension without pay. Copies of this letter were sent to Arthur Morris, the Director of Public Works, Howard Goldberg, Personnel Manager, and again, one to Mowery. Thereafter appellant received another memorandum from Falcone, dated April 5, 1978, reprimanding Boyer for careless work and a poor attitude. Again, disciplinary action was threatened. Copies of this memorandum were sent to the personnel department, to Morris, to the union steward, and additionally, to Lancaster Mayor Scott. Finally, Boyer received a memorandum from Falcone dated April 27, 1978, reprimanding him for careless workmanship and a poor attitude. Copies of this memorandum were sent to the personnel department, to a union representative, and one copy was placed in appellant's file.

Appellant believed the memoranda to be unsubstantiated and false,*fn1 and possibly the result of racial discrimination.*fn2

[ 499 Pa. Page 555]

It is reasonable, we believe, that appellant would respond to the continuing allegations as he did.

The question before us is not whether the employer had the right to discharge Mr. Boyer, but whether appellant is entitled to unemployment benefits under the provisions of the Unemployment Compensation Law. Frumento v. Unemployment Compensation Board of Review, 466 Pa. 81, 351 A.2d 631 (1976). Legal conclusions drawn by the Board are subject to judicial review. LeGare v. Unemployment Compensation Board of Review, 498 Pa. 72, 444 A.2d 1151 (1982); Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 378 A.2d 829 (1977). The question of whether an employee's actions constitute willful misconduct is a question of law, subject to this Court's review. McLean v. Unemployment Compensation Board of Review, 476 Pa. 617, 383 A.2d 533 (1978).

In Frumento v. Unemployment Compensation Board of Review, supra, this Court adopted a concept of good cause when assessing whether an employee's actions fall within the definition of willful misconduct. In Frumento we stated, "where the action of the employee is justifiable or reasonable under the circumstances it can not be considered wilful [sic] misconduct." Id. 466 Pa. at 87, 351 A.2d at 634.

With this standard in mind, we examine the circumstances surrounding appellant's discharge. As noted previously, appellant received five memoranda from his supervisor over an eighteen-month period. Copies of each memorandum were sent to various Lancaster employees. The record reveals that appellant initially tried to resolve the problems by

[ 499 Pa. Page 556]

    speaking to both his supervisor and to the personnel manager. Following the incident that precipitated the memorandum dated April 5, 1978, appellant and his supervisor met to discuss the problem. Mr. Falcone testified as follows.

"By Appellant's Attorney: You had a personal conversation about it, is that correct?

"Mr. Falcone: Right, and . . .

"And there was a disagreement. He thought that he was being treated unfairly and you felt that he was being treated fairly.

"Right, and neither one of us were satisfied."

Notes of Testimony at 23. Mr. Falcone testified subsequently, "Our discussions . . . were not getting us any place," and communication had "broken down." Notes of Testimony at 24.

Appellant testified that Mr. Falcone had not initiated any discussions with him concerning Falcone's dissatisfaction with appellant's job performance.

"By Appellant's Attorney: Did your supervisor come and approach you before he wrote these two memos to try and discuss it to try and find out your feelings about it?

"By Appellant: No he didn't. He gave me the memos first and I had to go to him after the memos were given."

Notes of Testimony at 55. Appellant Boyer testified that because he felt that his relationship with his supervisor was deteriorating, he contacted Howard Goldberg, the Director of Administrative Services and Personnel Manager.

"By Appellant's Attorney: Was this the period when you approached Mr. Goldberg? About your problems?

"By Appellant: Yes, it's about the same time.

"Do you recall just generally when, why you approached Mr. Goldberg or what you explained to him about your feelings?

"Yes, because I felt as though I was being treated unfairly . . . . I tried to talk to Mr. Goldberg and tried

[ 499 Pa. Page 557]

    to settle the differences that uh, Mr. ...


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