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DAVID L. SAVAGE v. COMMONWEALTH PENNSYLVANIA (04/30/85)

decided: April 30, 1985.

DAVID L. SAVAGE, 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 David L. Savage, No. B-207171 and No. B-207172.

COUNSEL

John F. Goryl, for petitioner.

Karin S. Simpson, Associate Counsel, with her, Charles G. Hasson, Acting Deputy Chief Counsel, for respondent.

Judge Colins, and Senior Judges Barbieri and Kalish. sitting as a panel of three. Opinion by Senior Judge Barbieri. Judge Williams, Jr., did not participate in the decision in this case.

Author: Barbieri

[ 89 Pa. Commw. Page 62]

David L. Savage, Claimant, appeals two orders of the Unemployment Compensation Board of Review (Board) which affirmed a referee's denial of benefits due to willful misconduct and a referee's finding that he received a nonfault overpayment in the amount of $1,386.00 subject to recoupment. We affirm.

Claimant was last employed as a driver by H.C. Gabler, Inc. (Employer) at a weekly salary of $370.00. His last day of work was January 15, 1982. From January 26, 1982 through January 29, 1982, Claimant was absent from work and no notice of such absence was given the Employer. On January 29, 1982, the Employer terminated Claimant for failing to report his absences.

[ 89 Pa. Commw. Page 63]

Claimant applied for unemployment compensation benefits on January 31, 1982. The Office of Employment Security (OES) determined that Claimant was eligible for benefits by decision dated February 24, 1982. The Employer appealed the OES determination to a referee who scheduled a hearing for March 17, 1982. Two Employer representatives appeared at the hearing, but neither Claimant nor anyone representing the Claimant appeared. The Employer's witnesses proceeded to present their case and, on March 24, 1982, the referee issued his decision reversing the OES determination and found that the Claimant was ineligible for benefits due to willful misconduct under Section 402(e) of the Pennsylvania Unemployment Compensation Law (Law).*fn1 Claimant filed a timely appeal to the Board which affirmed the referee on June 23, 1982. In the meantime, on March 29, 1982, the OES determined that Claimant had received a nonfault overpayment of benefits in the amount of $1,386.00 which was subject to recoupment under Section 804(b) of the Law.*fn2 Claimant appealed that determination to a referee who held a hearing on April 27, 1982. On April 29, 1982, the referee affirmed the OES determination regarding the nonfault overpayment. Claimant also appealed that decision to the Board which affirmed the referee on June 23, 1982. Claimant then filed timely petitions for review concerning both Board orders with this Court.

In this appeal, Claimant contends that the Board erred in concluding that his behavior rose to the level of willful misconduct so as to render him ineligible for benefits. Claimant also argues that he was denied his right to be heard when the referee based his

[ 89 Pa. Commw. Page 64]

    decision reversing the OES award of benefits upon testimony received at a hearing at which he was not present. We shall address these issues in that order. First, however, we note that in willful misconduct cases, the Employer must bear the burden of proof to show that the employee was discharged for willful misconduct in order to render the employee ineligible for benefits. Bignell v. Unemployment Compensation Board of Review, 61 Pa. Commonwealth Ct. 568, 434 A.2d 869 (1981). Where the party with the burden of proof has prevailed before the Board, as did the Employer here, our scope of review is limited to a determination of whether necessary findings are supported by substantial evidence, an error of law committed, or any constitutional rights violated. Section 704 of the Administrative Agency Law, 2 Pa. C.S. ยง 704; Saxton v. Unemployment Compensation Board of Review, 71 Pa. Commonwealth Ct. 636, 455 A.2d 765 (1983).

We will first examine whether Claimant's conduct, as found by the referee and the Board, rose to the level of willful misconduct so as to render him ineligible for benefits. Whether or not a claimant's actions constitute willful misconduct is a question of law properly reviewable by this Court. Nyzio v. Lee Tire and Rubber Co., 26 Pa. Commonwealth Ct. 600, 364 A.2d 981 (1976). The evidence presented before the referee indicates that Claimant requested a vacation day on January 18, 1982 to work on his car. He contacted his Employer that evening to request another vacation day, January 19, 1982, for the same purpose. On January 20, 1982, Claimant's wife called the Employer to report ...


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