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CARSON HARRIS v. COMMONWEALTH PENNSYLVANIA (03/29/84)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: March 29, 1984.

CARSON HARRIS, 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 Carson Harris, No. B-206606.

COUNSEL

Evalynn B. Welling, for petitioner.

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

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

Author: Blatt

[ 81 Pa. Commw. Page 261]

Carson Harris (claimant) appeals here an order of the Unemployment Compensation Board of Review (Board) which denied him benefits pursuant to Section 402(e) of the Unemployment Compensation Law (Law), Act of December 5, 1936, Special Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. ยง 802(e) (willful misconduct).

The claimant was employed by the New Diamond Market as a stock handler for approximately eight months. On December 20, 1981, he was ordered by his employer to transport inventory from the storage area to the display area of the store. After refusing to follow the order for the fourth time, he was discharged.

In an unemployment compensation case, where the party with the burden of proof prevailed below, our scope of review, of course, is to determine whether or not an error of law was committed or necessary findings of fact are unsupported by substantial evidence. Stackhouse v. Unemployment Compensation Board of Review, 56 Pa. Commonwealth Ct. 643, 425 A.2d 869 (1981). The burden of proof, furthermore, is upon the employer to prove that the discharge of the employee was for willful misconduct. Hadvance v. Unemployment Compensation Board of Review, 65 Pa. Commonwealth Ct. 447, 442 A.2d 862 (1982).

The claimant contends that he received no notice of his hearing date, was therefore precluded from attending and presenting evidence, and should not be denied benefits.

Our thorough review of the record indicates that, because of the Board's failure to make any findings of fact on the notice issue,*fn1 we will be unable to resolve

[ 81 Pa. Commw. Page 262]

    the question presented. The Board, of course, is required to make findings which are ". . . necessary to resolve the issues raised by the evidence and which are relevant to a decision." Cicco v. Unemployment Compensation Board of Review, 61 Pa. Commonwealth Ct. 309, 313, 432 A.2d 1162, 1164 (1981). (Emphasis added.) And, as previously noted, our limited scope of review is to determine, inter alia, whether or not the findings of fact are supported by substantial evidence. Stackhouse. Until the Board makes findings on the notice issue, however, we are precluded from operating in our appellate capacity.*fn2

We will, therefore, vacate the order of the Board and remand for proceedings consistent with this opinion.

Order

And Now, this 29th day of March, 1984, the order of the Unemployment Compensation Board of Review is vacated and remanded for proceedings consistent with this opinion. Jurisdiction relinquished.

Disposition

Vacated and remanded.


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