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THOMAS S. DUNKLE v. COMMONWEALTH PENNSYLVANIA (08/07/85)

decided: August 7, 1985.

THOMAS S. DUNKLE, 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 Thomas S. Dunkle, No. B-232657.

COUNSEL

Harry S. Geller, for petitioner.

Charles G. Hasson, Acting Deputy Chief Counsel, for respondent.

Judges Craig and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Palladino.

Author: Palladino

[ 91 Pa. Commw. Page 2]

Thomas S. Dunkle (Claimant) appeals from an order of the Unemployment Compensation Board of Review (Board) which affirmed the decision of the Referee denying benefits to the Claimant based on willful misconduct pursuant to Section 402(e) of the Pennsylvania Unemployment Compensation Law.*fn1 We reverse.

The facts as found by the referee and adopted by the Board are as follows. Claimant was employed by Richard Textiles (Employer) as a stockroom attendant. In September of 1983, the Claimant suffered a work-related injury for which he received Workmen's Compensation benefits. On December 6, 1983, the Claimant returned to work. Subsequently, on December 24, 1983, the Employer requested that the Claimant sign a Final Receipt for the Workmen's

[ 91 Pa. Commw. Page 3]

Compensation benefits. On December 29, 1983, the Employer again requested that the Claimant sign the Final Receipt. At this time, the Claimant expressed the desire to consult with an attorney before signing the document. The Employer then informed the Claimant that he could seek legal advice, but if he returned to work for his next shift without having signed the Final Receipt, he would be discharged. Throughout the holidays, the Claimant made repeated attempts to obtain legal counsel, but was unsuccessful. As a result, he did not sign the Final Receipt.

The Claimant's next scheduled shift was on January 2, 1984. However, the Claimant did not report to work and failed to notify his Employer of his absence in violation of a company policy. The Claimant reported to the work site on January 3, 1984,*fn2 and was informed that he was discharged for his unreported absence from his previous shift. The Referee found that the Claimant was dismissed for his unreported absence on January 2 and not for his failure to sign the Final Receipt. Thus, the Referee determined that the unreported absence constituted willful misconduct, and denied benefits to the Claimant. The Board affirmed the Referee's decision.

In an unemployment compensation case, the employer bears the burden of proving willful misconduct, and where the claimant attempts to justify his action, he must prove good cause. Elliot v. Unemployment Compensation Board of Review, 82 Pa. Commonwealth Ct. 107, 474 A.2d 735 (1984). Where the party bearing the burden of proof does not prevail before the Board, this Court's scope of review is limited to a determination of whether there has been a capricious disregard of competent evidence or whether the Board

[ 91 Pa. Commw. Page 4]

    has committed an error of law. Department of the Auditor General v. Unemployment Compensation Board of Review, 86 Pa. ...


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