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JEAN CLARK v. COMMONWEALTH PENNSYLVANIA (02/29/84)

decided: February 29, 1984.

JEAN CLARK, 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 Jean D. Clark, No. B-187391-D.

COUNSEL

Andrew F. Erba, for petitioner.

Charles G. Hasson, Acting Deputy Chief Counsel, with him Richard L. Cole, Jr., Chief Counsel, for respondent.

President Judge Crumlish, Jr., and Judges Williams, Jr. and Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 80 Pa. Commw. Page 515]

Jean Clark (claimant) appeals from an order of the Unemployment Compensation Board of Review (Board) denying her benefits on the basis that her unemployment is due to her own fault. Section 3 of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 752.*fn1

The Board found that the Office of Housing and Development of the Redevelopment Authority of the City of Philadelphia (employer) discharged the claimant from her job as a community worker after she was convicted of perjuring herself in the course of a Grand Jury Investigation. Following her discharge, the claimant applied for compensation benefits to the Office of Employment Security (OES) which denied her claim pursuant to Section 402(e) of the Law, as amended, 43 P.S. § 802(e) (willful misconduct). On appeal to the referee, this order was affirmed but

[ 80 Pa. Commw. Page 516]

    modified so as to deny the claim pursuant to Section 3 of the Law (unemployment due to employee's own fault). The Board affirmed the referee's order to deny the claim but predicated its decision on that of the OES, i.e., willful misconduct; later, upon request of the claimant, the Board vacated this decision and remanded the case to a Hearing Officer. After receiving the supplemented record, the Board again denied the claim on the basis of willful misconduct. An appeal to this Court followed but, prior to argument, the parties agreed by stipulation to a second remand. The resulting third and final Board order denied the claimant benefits because the Board found, pursuant to Section 3 of the Law, that her unemployment was due to her own fault. The present appeal followed.*fn2 The claimant argues that the employer failed to sustain its burden of proof.

In Unemployment Compensation Board of Review v. Derk, 24 Pa. Commonwealth Ct. 54, 57, 353 A.2d 915, 917 (1976), we held that:

In order to deny compensation under Section 3 of the Act, more is needed than mere evidence of an arrest for a crime. The employer must present some evidence showing conduct of the claimant leading to the criminal arrest which is inconsistent with acceptable standards of behavior

[ 80 Pa. Commw. Page 517]

    and which directly reflects upon his ability to perform his assigned duties. Of course, no proof of criminal conviction is necessary. . . . The employer need only produce evidence that would have established fault on the part of the employee which would be incompatible ...


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