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SOL SACKS v. COMMONWEALTH PENNSYLVANIA (04/29/83)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: April 29, 1983.

SOL SACKS, 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 Sol M. Sacks, No. B-172802-E.

COUNSEL

Andrew F. Erba, for petitioner.

William J. Kennedy, Associate Counsel, with him Richard L. Cole, Jr., Chief Counsel, for respondent.

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

Author: Macphail

[ 74 Pa. Commw. Page 32]

Sol Sacks (Claimant) appeals from a decision of the Unemployment Compensation Board of Review (Board) finding him ineligible for benefits as a result of his discharge from Pincus Brothers-Maxwell (Employer) for willful misconduct. Section 402(e) of the

[ 74 Pa. Commw. Page 33]

Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. ยง 802(e). We affirm.*fn1

Claimant was last employed as a cutter of men's suits by Employer. Employer's reason for discharging Claimant was a decline in work performance culminating in an incident of miscutting sleeves made of expensive camel hair. Claimant contends that the evidence failed to show that Claimant's performance differed from that of his co-workers and that any errors he made were honest mistakes.

The burden of proving willful misconduct is, of course, on the employer. Patterson v. Unemployment Compensation Board of Review, 60 Pa. Commonwealth Ct. 53, 430 A.2d 1011 (1981). Where the party with the burden of proof prevails before the Board, our scope of review is to determine whether an error of law has been committed or whether any necessary finding of fact is unsupported by substantial evidence. Lake v. Unemployment Compensation Board of Review, 48 Pa. Commonwealth Ct. 138, 409 A.2d 126 (1979). We have carefully examined the entire record in this case and have concluded that all of the findings

[ 74 Pa. Commw. Page 34]

    are supported.*fn2 While Claimant argued that any errors were honest mistakes and were no more than the errors made by co-workers, the Board chose not to accept Claimant's version of events, as was within its power to do. Eduardo v. Unemployment Compensation Board of Review, 61 Pa. Commonwealth Ct. 424, 434 A.2d 215 (1981).

Having determined that the findings are supported by substantial evidence, this Court still must determine whether, as a matter of law, those findings support a conclusion of willful misconduct. O'Keefe v. Unemployment Compensation Board of Review, 18 Pa. Commonwealth Ct. 151, 333 A.2d 815 (1975). Mere incompetence, inexperience or inability of an employee, while it may justify a discharge will not constitute willful misconduct so as to render an employee ineligible for unemployment compensation. Wetzel v. Unemployment Compensation Board of Review, 29 Pa. Commonwealth Ct. 195, 370 A.2d 415 (1977). However, in this case the record supports the Board's finding that Claimant had the ability to perform his work properly, but through deliberate violations of Employer's directives and negligence, Claimant's work during his last months of employment did not reach the satisfactory level which he had previously displayed. Such actions must be construed as conduct showing intentional and substantial disregard of Employer's interests or of the Claimant's duties and obligations. See Cullison v. Unemployment Compensation Board of Review, 66 Pa. Commonwealth Ct. 416, 444 A.2d 1330 (1982). The many warnings Claimant had been given

[ 74 Pa. Commw. Page 35]

    regarding the poor quality of his work, and his failure to improve after such warnings, reflects on his attitude toward his employment and thus adds to the willfulness of the misconduct. American Process Lettering, Inc. v. Unemployment Compensation Board of Review, 50 Pa. Commonwealth Ct. 272, 412 A.2d 1123 (1980); Kosmalski v. Unemployment Compensation Board of Review, 40 Pa. Commonwealth Ct. 527, 397 A.2d 875 (1979).

Finally, Claimant contends the Board erred in not reversing the referee's decision refusing to admit portions of the notes of testimony from Claimant's arbitration hearing. In his brief to the Board, Claimant contended that his purpose in seeking to have the prior testimony admitted was for impeachment. However, from the record it is clear that Claimant sought to have introduced the prior testimony of Mr. Pincus, when the only Employer witnesses to testify were Mr. Perischetti and Mr. Older. "[I]t is axiomatic that when attempting to discredit a witness' testimony by means of a prior inconsistent statement, the statement must have been made or adopted by the witness whose credibility is being impeached." Commonwealth v. Baez, 494 Pa. 388, 394, 431 A.2d 909, 912 (1981) (emphasis in original). We therefore can find no error by the Board in refusing to reverse the referee.*fn3

Order

The order of the Unemployment Compensation Board of Review, No. B-172802-E, dated September 21, 1981, is hereby affirmed.

Disposition

Affirmed.


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