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BROWNING-FERRIS INDUSTRIES PENNSYLVANIA v. COMMONWEALTH PENNSYLVANIA (12/12/85)

decided: December 12, 1985.

BROWNING-FERRIS INDUSTRIES OF PENNSYLVANIA, INC., 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 William G. Eggers, No. B-231360.

COUNSEL

P. Christian Hague, with him, Albert A. Torrence, Meyer, Unkovic & Scott, 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. Dissenting Opinion by Judge Craig.

Author: Palladino

[ 93 Pa. Commw. Page 461]

Browning-Ferris Industries of Pennsylvania, Inc. (Employer) appeals from a decision of the Unemployment Compensation Board of Review (Board) awarding benefits to William G. Eggers (Claimant). We reverse.

The findings of fact, as found by the referee and adopted by the Board are as follows. Claimant was employed as a truck driver by Employer for nine months. In August of 1983, Claimant was suspended from work for excessive absenteeism and a failure to report off from work as required by Employer's policies and rules. After his suspension, Claimant was frequently tardy in reporting to work. On December

[ 93 Pa. Commw. Page 4629]

, 1983, Claimant had a dispute with the dispatcher. Claimant used a vulgar expression several times as he walked away from the dispatcher, in the presence of a female employee. Employer has a rule against employees using "vile or abusive language," which was strictly enforced. Claimant was discharged on the same day for violating the Employer's rule against the use of vulgar language. The referee awarded benefits to Claimant on the ground that the Claimant's conduct did not constitute willful misconduct under Section 402(e) of the Unemployment Compensation Law (Law).*fn1 The Board affirmed the decision of the referee.

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 with 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 has committed an error of law. Department of the Auditor General v. Unemployment Compensation Board of Review, 86 Pa. Commonwealth Ct. 262, 484 A.2d 834 (1984). Whether conduct constitutes willful misconduct is a question of law subject to the review of this Court. Wilson v. Unemployment Compensation Board of Review, 72 Pa. Commonwealth Ct. 504, 457 A.2d 164 (1983).

Here, Employer alleged that Claimant was discharged for his tardiness and for his violation of Employer's rule against the use of vile and abusive language.

[ 93 Pa. Commw. Page 463]

We find that the referee erred, as a matter of law, in finding that Claimant's violation of Employer's rule did not ...


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