Appeal from the Order of the Unemployment Compensation Board of Review in case of In re: Claim of Marshall Sterling, No. B-206316.
Arnold J. Wolf, for petitioner.
Richard F. Faux, Associate Counsel, with him Richard L. Cole, Jr., Chief Counsel, for respondent.
Judges Williams, Jr., Barry and Colins, sitting as a panel of three. Opinion by Judge Colins.
[ 81 Pa. Commw. Page 489]
Marshall Sterling (claimant) appeals here from an order of the Unemployment Compensation Board of Review (Board) which denied him benefits pursuant to Section 402(e) of the Unemployment Compensation Law.*fn1
The claimant was employed by Brooks Drugs (employer) for 5-1/2 years as a pharmacy manager at $405.00 a week. His last day of work was January 21, 1982.
On February 18, 1982, a Notice of Determination was sent to the claimant from the Office of Employment Security denying him unemployment compensation. The Notice of Determination stated that the claimant "was separated from [his] employment for reasons which are considered willful misconduct in connection with the claimant's work because he gave unauthorized prescription discounts which were against company policy." The claimant appealed this determination and the matter was referred to a referee. The referee affirmed the determination of the Office of Employment Security and found that "the claimant was discharged for violation of company rule [sic] concerning giving discounts without properly
[ 81 Pa. Commw. Page 490]
completed records, consuming candy and sodas without reimbursement to the company and taking money out of the register and replacing the same amount with 'cents off' coupons; all of which were in violation of company rules." The claimant appealed the referee's decision. On June 1, 1982 the Unemployment Compensation Board of Review issued an order and decision affirming the determination made by the referee and adopting the referee's findings of fact.
The burden of proving willful misconduct lies with the employer. Connelly v. Unemployment Compensation Board of Review, 68 Pa. Commonwealth Ct. 635, 450 A.2d 245 (1982). Pursuant to Section 704 of the Administrative Agency Law,*fn2 we shall affirm the Board's adjudication unless a party's constitutional rights were violated, or there was an error of law or the findings of fact are not supported by substantial evidence.
The claimant argues that his rights of due process were violated where facts were raised for the first time at the hearing, without any prior notice, and said facts were used by the referee as part of her decision that he had engaged in willful misconduct.
We agree that the referee on appeal may only consider those charges delineated in the hearing notice. The Notice of Determination was insufficient to provide proper notice of certain charges against the claimant. The additional charges raised at the referee's hearing which were not included in the Notice of Determination were: that he gave discounts without properly completed records; he consumed candy and sodas without ...