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COMMONWEALTH PENNSYLVANIA v. COMMONWEALTH PENNSYLVANIA (12/09/83)

decided: December 9, 1983.

COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA STATE POLICE, 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 Charles E. Cox, Jr., No. B-207059.

COUNSEL

Joseph S. Rengert, Assistant Counsel, for petitioner.

Michael D. Alsher, Associate Counsel, with him Charles Hasson, Associate Counsel, and Richard L. Cole, Jr., Chief Counsel, for respondent.

Judges MacPhail, Doyle and Barbieri, sitting as a panel of three. Opinion by Judge Doyle. Judge Barbieri concurs in the result only.

Author: Doyle

[ 79 Pa. Commw. Page 47]

This is an appeal by the Pennsylvania State Police of an order of the Unemployment Compensation Board of Review which affirmed an award of benefits to Charles E. Cox, Jr. (Claimant). We affirm.

Claimant was employed as a state trooper by the Pennsylvania State Police (State Police) from July 7, 1980 to January 5, 1982. During that time he was considered on probationary status as are all new members of the State Police. On December 29, 1981, after

[ 79 Pa. Commw. Page 48]

    reviewing reports of two incidents in which Claimant had been included, the State Police Probationary Review Board recommended by a vote of 2-1 that Claimant be dismissed, concluding that he had violated two of the employer's regulations concerning courtesy and conduct toward the public. By letter dated January 4, 1982, Claimant was advised of his separation from employment with the State Police.

Claimant filed an application for unemployment compensation benefits and on February 1, 1982 the Office of Employment Security determined Claimant to be eligible. The State Police appealed the determination and, following a hearing before a referee, the award of benefits was affirmed. On appeal to the Board the award of benefits was upheld. The appeal to this Court followed.

The State Police argue that Claimant is not entitled to benefits because he was discharged for willful misconduct.*fn1 The burden of proving willful misconduct rests with the employer. Stauffer v. Unemployment Compensation Board of Review, 71 Pa. Commonwealth Ct. 569, 455 A.2d 300 (1983). When, as here, the party with the burden of proof does not prevail before the compensation authorities, our review is limited to a determination of whether the findings of fact are consistent with each other and with the conclusions of law and can be sustained without a capricious disregard of competent evidence. Keg & Butcher Block v. Unemployment Compensation Board of Review, 69 Pa. Commonwealth Ct. 225, 450 A.2d 782 (1982).

The State Police urge first that the referee erred and capriciously disregarded the ...


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