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EARL H. NICHOL v. COMMONWEALTH PENNSYLVANIA (05/07/84)

decided: May 7, 1984.

EARL H. NICHOL, JR., 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 Earl H. Nichol, Jr., No. B-212243.

COUNSEL

Dina G. McIntyre, McIntyre & McIntyre, with her, Armand R. Cingolani, Jr., Cingolani & Cingolani, for petitioner.

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

Judges Williams, Jr., Barry and Palladino, sitting as a panel of three. Opinion by Judge Williams, Jr.

Author: Williams

[ 82 Pa. Commw. Page 236]

Earl H. Nichol, Jr. (claimant), petitions for review of the order of the Unemployment Compensation Board of Review (Board) affirming the decision of a referee denying benefits pursuant to Section 402(e)*fn1 of the Unemployment Compensation Law (Act) (discharge for willful misconduct connected to work).

The claimant was last employed as a radio announcer by WBUT, Inc. (employer). He was discharged because he allegedly failed to comply with three of the employer's policies of which he was aware: verifying the pronunciation of names of residents of the area served by the employer before using such names in broadcasts; certifying that a commercial had been broadcast by the employer's FM station when it had not and recording weather reports for broadcast by the FM station directly onto tape cartridges without having recorded the reports on reel-to-reel tape.

The burden of proving that the claimant was discharged for willful misconduct is on the employer. Stauffer v. Unemployment Compensation Board of Review, 71 Pa. Commonwealth Ct. 569, 455 A.2d 300 (1983). If, as here, the burdened party has prevailed before the Board, our scope of review is limited to questions of law and determining whether the findings of fact are supported by substantial competent evidence. Saxton v. Unemployment Compensation Board of Review, 71 Pa. Commonwealth Ct. 636, 455 A.2d 765 (1983).

The claimant contends that the referee's*fn2 material findings of fact are not supported by substantial evidence

[ 82 Pa. Commw. Page 237]

    and that the referee's conclusion of willful misconduct was legal error. The Board, in its brief, concedes that the alleged failures to verify the pronunciations of names and the alleged false certification that the commercial had been broadcast occurred at a time too remote from the claimant's discharge to constitute the ultimate reason for discharge. See Panaro v. Unemployment Compensation Board of Review, 51 Pa. Commonwealth Ct. 19, 413 A.2d 772 (1980). Thus, we need determine only if those findings relating to the alleged failure to comply with the weather report recording procedure are supported by substantial competent evidence in the record and whether such conduct constitutes willful misconduct.

The findings relating to the weather report issue are as follows:

7. Claimant was advised in 1981 that the employer wanted the weather reports to be first recorded on a reel before being transferred to a cassette and the ...


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