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

COMMONWEALTH COURT OF PENNSYLVANIA


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 which one of ordinary intelligence could not possibly have avoided in reaching the result." Houff Transfer, Inc. v. Unemployment Compensation Board of Review, 40 Pa. Commonwealth Ct. 238, 241,

[ 86 Pa. Commw. Page 266397]

A.2d 42, 44 (1979), quoting Unemployment Compensation Board of Review v. Cooper, 25 Pa. Commonwealth Ct. 256, 259, 360 A.2d 293, 294 (1976). The Board's finding that Claimant was unaware at the time her application was filed that money had been paid for purposes of procuring her a position is, admittedly, contrary to the finding of the referee. Nonetheless, there is evidence in the record to support the Board's finding on this point. When there is conflicting testimony it is the Board's function to resolve questions of credibility and conflicts in the testimony. Hanover Industrial Machine Co., v. Unemployment Compensation Board of Review, 77 Pa. Commonwealth Ct. 539, 466 A.2d 290 (1983). We, therefore, will not disturb this finding.

There appears to be no dispute that money was paid by Claimant's father for the purpose of increasing her chances of employment. There is no doubt that this conduct is reprehensible. But this was not Claimant's conduct. Moreover, our review of the law has revealed no unemployment compensation case where this Court permitted an employee to be held vicariously liable for the conduct of another individual. To the contrary, our recent opinion in Stickloon v. Unemployment Compensation Board of Review, 82 Pa. Commonwealth Ct. 223, 475 A.2d 893 (1984) (a work stoppage case), indicates our disapproval of an employer's attempt to hold an employee vicariously liable. Sections 3 and 402(e) of the Law refer to one's own conduct. Thus, the critical question is, was Claimant either at fault pursuant to Section 3 or guilty of willful misconduct pursuant to Section 402(e). It is clear from the record that at some point Claimant became aware of the illegal payment. What the Board failed to determine is when this occurred. If Claimant became aware of her

[ 86 Pa. Commw. Page 267]

    father's actions after she filed her application, but prior to being hired, and then acquiesced in her father's illegal conduct, then clearly she herself is "at fault" pursuant to Section 3 of the Law.*fn5 If, however, she did not learn of the payment until after being hired, and played no part in the actual tainted act, i.e., the attempted procurement of the position by payment, then she is without fault.*fn6 Because the Board and not this Court is empowered to make findings we must remand for a finding on when Claimant learned of the payment. This case is, therefore, remanded for additional findings consistent with this opinion.

Order

Now, November 30, 1984, the decision and order of the Unemployment Compensation Board of Review, No. B-221658, dated August 26, 1983, is hereby vacated and that case is remanded to the Board for further proceedings consistent with this opinion. Jurisdiction relinquished.

Judge Colins dissents.

Disposition

Vacated and remanded.


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