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DONALD E. WALLACE v. COMMONWEALTH PENNSYLVANIA (06/21/84)

decided: June 21, 1984.

DONALD E. WALLACE, 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 Donald E. Wallace, No. B-212589.

COUNSEL

Michael Goldberg, for petitioner.

Richard F. Faux, Associate Counsel, with him, Richard L. Cole, Jr., Chief Counsel, for respondent.

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

Author: Macphail

[ 83 Pa. Commw. Page 328]

Donald E. Wallace (Claimant) appeals the order of the Unemployment Compensation Board of Review (Board) which denied him benefits pursuant to Section 3 of the Unemployment Compensation Law (Act).*fn1

[ 83 Pa. Commw. Page 329]

Claimant was employed by the Pennsylvania Department of Transportation (Employer) in the maintenance department as a dump truck driver for twelve years. On July 16, 1982, Claimant was suspended indefinitely according to the terms of Section 7.173 of the Governor's Code of Conduct*fn2 because he was arrested and charged with the felony of arson. Claimant filed for unemployment benefits which were denied by the Office of Employment Security under Section 3 of the Act. After a hearing, the referee reversed Claimant's ineligibility because there was no competent evidence to indicate Claimant's guilt of the alleged felony. The referee awarded Claimant benefits from July 31, 1982 through August 14, 1982, because Claimant was temporarily unemployed through no fault of his own. The Board reversed the referee and denied benefits, reasoning that since Claimant became involved in circumstances which led to his arrest for the commission of a felony, he must be deemed to have done so through his own fault.

Claimant argues that Employer failed to prove that Claimant was suspended due to his own fault and that the criminal charge directly affected his ability to perform his job.

[ 83 Pa. Commw. Page 330]

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

[i]n 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 and which directly reflects upon his ability to perform his assigned duties.

Our review of the record reveals that Employer did not meet its burden of proof as set forth in Derk. While it is undisputed that Claimant was arrested for a crime, the Employer did not present any evidence showing that Claimant was at fault for the alleged arson. The record indicates that Employer was even uncertain about the nature of the crime. When the referee asked the Employer's witness what charges were filed against Claimant, the witness responded "I think they were arson." ...


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