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SAMUEL DUNBAR v. COMMONWEALTH PENNSYLVANIA (05/30/84)

decided: May 30, 1984.

SAMUEL DUNBAR, JR., 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 Samuel Dunbar, Jr., No. B-212588.

COUNSEL

Geoffrey M. Biringer, for petitioner.

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

Judges Rogers, MacPhail and Barbieri, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 82 Pa. Commw. Page 576]

Samuel Dunbar, Jr. has appealed from an order of the Unemployment Compensation Board of Review which affirmed a referee's decision denying him unemployment compensation benefits by reason of his asserted willful misconduct, pursuant to Section 402(e) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. ยง 802(e).

The claimant was last employed as a maintenance repairman by the Commonwealth of Pennsylvania, Department of General Services. In August, 1981, he was involved in a domestic altercation which resulted in his being arrested and charged with aggravated assault. On December 30, 1981, while on annual leave

[ 82 Pa. Commw. Page 577]

    from his employment, the claimant was incarcerated pending trial on the assault charge. Because of his incarceration, the claimant did not report to work on January 4, 1982 as scheduled, but the following day he contacted his supervisor and informed him that due to his circumstances he would not be able to return to work until at least January 27, 1982, the date of his trial. The claimant was suspended from his employment as of January 4, 1982 as mandated by Section 7.173 of the Governor's Code of Conduct. 10 Pa. B. 4020 (1981). He was subsequently convicted of simple assault and sentenced to three to twelve months imprisonment. As a result of this conviction, he was discharged by the Department of General Services.

The claimant was released from prison on July 15, 1982 and applied for unemployment compensation for the period following his release. The Office of Employment Security notified the claimant in writing that he was ineligible for compensation because his separation from employment was the result of his willful misconduct, consisting of his arrest on a felony charge in violation of the Governor's Code of Conduct. The claimant appealed and the referee approved the denial of benefits finding that the claimant had violated the Governor's Code of Conduct. The Board of Review affirmed.

The issue here is whether the claimant's violation of the Governor's Code of Conduct per se constitutes willful misconduct making him ineligible to receive unemployment compensation.

In willful misconduct cases, the burden of establishing the claimant's ineligibility is on the employer, and our scope of review is limited to questions of law and to a determination of whether the board's findings are supported by substantial evidence. Gallagher v. Unemployment ...


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