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DEPARTMENT AUDITOR GENERAL v. COMMONWEALTH PENNSYLVANIA (11/30/84)

decided: November 30, 1984.

DEPARTMENT OF THE AUDITOR GENERAL, 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 Diana M. Varlotto, No. B-221658.

COUNSEL

Charles D. Shields, Jr., Deputy Counsel, for petitioner.

Michael D. Alsher, Associate Counsel, with him, Charles G. Hasson, Acting Deputy Chief Counsel, for respondent.

James W. Carroll, Jr., with him, H. Yale Gutnick, for intervenor, Diana M. Varlotto.

Judges Craig, Doyle and Colins, sitting as a panel of three. Opinion by Judge Doyle. Judge Colins dissents.

Author: Doyle

[ 86 Pa. Commw. Page 264]

This is an appeal by the Department of the Auditor General (Employer) from a determination and order of the Unemployment Compensation Board of Review (Board) granting Diana M. Varlotto (Claimant) unemployment compensation benefits.*fn1 Claimant was initially determined by the Office of Employment Security (OES) to be ineligible for benefits under Section 3 of the Unemployment Compensation Law (Law).*fn2 The referee affirmed the OES determination under Section 3 but additionally found that Claimant was not guilty of willful misconduct under Section 402(e) of the Law.*fn3 An appeal to the Board followed, and the Board reversed the Referee, finding that Claimant was not ineligible on the basis of either Section 3 or Section 402(e) of the Law.

Claimant, who was a Field Auditor for Employer, was suspended and subsequently discharged from her position "for allegedly paying money to obtain her job,

[ 86 Pa. Commw. Page 265]

    failing to reveal the payment on her application for employment" and being named in a grand jury presentment.*fn4

The Board found that a "contribution" had been made to someone by the Claimant's father, apparently for the purpose of enhancing Claimant's chances of obtaining employment, but further found that Claimant, at the time her application was filed, was unaware of her father's actions. The Board thus determined that Claimant was not ineligible for benefits on the basis of either Section 3 or Section 402(e). The Employer's appeal to this Court followed.

The employer bears the burden of proving that a claimant is unemployed through fault of the claimant's own doing. Wallace v. Unemployment Compensation Board of Review, 83 Pa. Commonwealth Ct. 327, 476 A.2d 1028 (1984); Unemployment Compensation Board of Review v. Derk, 24 Pa. Commonwealth Ct. 54, 353 A.2d 915 (1976). Where, as here, the party with the burden of proof has not prevailed before the Board, this Court's scope of review is limited to determining whether there has been a capricious disregard of competent evidence or whether there has been an error of law. Lake v. Unemployment Compensation Board of Review, 48 Pa. Commonwealth Ct. 138, 409 A.2d 126 (1979). Capricious disregard is the "deliberate disregard of competent testimony ...


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