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CHARLES T. BRANT v. COMMONWEALTH PENNSYLVANIA (06/27/84)

decided: June 27, 1984.

CHARLES T. BRANT, 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 Charles T. Brant, No. B-212571.

COUNSEL

James Bukac, for petitioner.

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

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

Author: Barry

[ 83 Pa. Commw. Page 374]

This appeal results from an order of the Unemployment Compensation Board of Review (Board) which affirmed a decision of the referee, denying unemployment benefits to petitioner Charles T. Brant.

The facts of this appeal are set forth in our opinion in Swires v. Unemployment Compensation Board of Review, 83 Pa. Commonwealth Ct. 367, A.2d (1984). Following petitioner's discharge, the Office of Employment Security denied his application for benefits. Both the referee and the Board affirmed and this appeal followed.

Section 402(e) of the Unemployment Compensation Law (Act), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. ยง 802(e), provides, "An employe shall be ineligible for compensation for any week . . . [i]n which his unemployment

[ 83 Pa. Commw. Page 375]

    is due to his discharge . . . for willful misconduct. . . ." Although the Act does not define the term "willful misconduct", we have defined that term in Kentucky Fried Chicken of Altoona, Inc. v. Unemployment Compensation Board of Review, 10 Pa. Commonwealth Ct. 90, 97, 309 A.2d 165, 168-69 (1973), where we stated:

For behavior to constitute wilful misconduct, it must evidence (1) the wanton and wilful disregard of the employer's interest, (2) the deliberate violation of rules, (3) the disregard of standards of behavior which an employer can rightfully expect from his employe, or (4) negligence which manifests culpability, wrongful intent, evil design, or intentional and substantial disregard for the employer's interests or the employee's duties and obligations.

The burden of proving willful misconduct rests with the employer. Bignell v. Unemployment Compensation Board of Review, 61 Pa. Commonwealth Ct. 568, 434 A.2d 869 (1981). Where, as here, the party with the burden of proof has prevailed before the fact finder, our review is limited to determining whether the necessary findings of fact are supported by substantial evidence or whether an error of law has been committed. Palmer v. Unemployment Compensation Board of Review, 68 Pa. Commonwealth Ct. 388, 449 A.2d 126 (1982).

Petitioner claims he did not engage in willful misconduct by refusing to follow his employer's order to unload and reload the truck before returning it to the employer's yard. In Hughes v. Unemployment Compensation Board of Review, 40 Pa. Commonwealth Ct. 422, 397 A.2d 494 (1979), we held that refusal to follow an employer's order will not amount to willful misconduct if the ...


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