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ALVINA ADOLPHUS v. COMMONWEALTH PENNSYLVANIA (02/06/84)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: February 6, 1984.

ALVINA ADOLPHUS, 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 Alvina Adolphus, No. B-210534.

COUNSEL

Harold I. Goodman, for petitioner.

James K. Bradley, Associate Counsel, with him Richard L. Cole, Jr., Chief Counsel, for respondent.

Judges Craig, Doyle and Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 80 Pa. Commw. Page 156]

Alvina Adolphus (claimant) appeals here an order of the Unemployment Compensation Board of Review (Board) which affirmed a referee's denial of benefits pursuant to 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) (willful misconduct).

The facts are not in dispute. The claimant was employed by the First Pennsylvania Bank (employer) as a teller. She was discharged for not following company procedures relating to check cashing, money order preparation and the making of a "cash switch"*fn1 between tellers.

[ 80 Pa. Commw. Page 157]

The burden of proving willful misconduct lies with the employer. Unemployment Compensation Board of Page 157} Review v. Bacon, 25 Pa. Commonwealth Ct. 583, 361 A.2d 505 (1976). And where, as here, the party with the burden of proof has prevailed below, our scope of review is limited to questions of law and a determination as to whether or not the Board's findings are supported by substantial evidence. Jula v. Unemployment Compensation Board of Review, 48 Pa. Commonwealth Ct. 353, 409 A.2d 953 (1980).

The claimant argues first that the record does not support the Board's conclusion that she engaged in willful misconduct. She submits that her conduct does not rise to the level of disqualifying willful misconduct but is more correctly characterized as incompetence, inexperience, or inability. Wetzel v. Unemployment Compensation Board of Review, 29 Pa. Commonwealth Ct. 195, 370 A.2d 415 (1977). The Board, however, while recognizing that incompetence, etc. does not constitute willful misconduct argues that the claimant's poor work performance leading to her discharge was the result of an unwillingness on her part to work to the best of her ability, see Markley v. Unemployment Compensation Board of Review, 47 Pa. Commonwealth Ct. 148, 407 A.2d 144 (1979), and that her repeated and unjustified violation of company rules must be construed as conduct showing an intentional and substantial disregard of the employer's interest and the claimant's duties and obligations. Kentucky Fried Chicken of Altoona, Inc. v. Unemployment Compensation Board of Review, 10 Pa. Commonwealth Ct. 90, 309 A.2d 165 (1973).

The employer presented testimony indicating that the claimant had failed to carry out the required "cash switch" procedure and that a violation of this procedure was a terminable offense. Moreover, the claimant's own testimony reveals, in regard to the money order incident, that she never checked the correct amount of the order before returning it to the customer.*fn2

[ 80 Pa. Commw. Page 158]

It is clear that substantial evidence was offered to support the Board's conclusion.

The claimant next argues that there is no evidence that she intended to violate the employer's procedure. This argument, however, was rejected in Homony v. Unemployment Compensation Board of Review, 11 Pa. Commonwealth Ct. 142, 312 A.2d 77 (1973) where this Court held that:

Indeed, an intent to wrong the employer is not necessary, and a conclusion of "willful misconduct" may be based on a finding of conscious indifference to the duty owed the employer. (Emphasis deleted.)

Id. at 146, 312 A.2d at 78.

Accordingly,*fn3 we will affirm the Board's order.

Order

And Now, this 6th day of February, 1984, the order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby affirmed.

Disposition

Affirmed.


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