Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Larry H. Ross, No. B-233587.
Thomas J. Nickels, Heitmiller & Nickels, for petitioner.
No appearance for respondent.
Paul Domalakes, Rubright, Domalakes, Troy & Miller, for intervenor, Larry H. Ross.
President Judge Crumlish, Jr., Judge Colins, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Colins. Senior Judge Barbieri concurs in the result only.
[ 94 Pa. Commw. Page 486]
Blue Mountain School District (employer) appeals an order of the Unemployment Compensation Board of Review (Board) reversing a decision of the referee which denied unemployment compensation benefits to Larry H. Ross (claimant), a suspended teacher with thirty-one years of teaching experience, for alleged acts of willful misconduct, pursuant to Section 402(e) of the Unemployment Compensation Law.*fn1 We affirm.
[ 94 Pa. Commw. Page 487]
Claimant had been employed as a health teacher and guidance counselor since 1958. He was suspended from his position on April 10, 1984 following accusation by four twelve-year old female students of improper conduct. Each student accused the claimant of improper physical contact on at least one occasion. Each student testified at hearings before the School Board regarding the alleged incident(s).
Claimant was awarded unemployment compensation benefits by the Office of Employment Security and his employer appealed. At the subsequent hearing, the referee took testimony from only one of the students who had accused claimant of improper conduct. In lieu of the testimony of the other three students, the referee admitted into evidence, over the objection of claimant's counsel, the transcripts of claimant's prior dismissal hearings before the School Board. Counsel for the employer explained his failure to offer live testimony of the three students as an attempt to save them the distress and embarrassment of testifying about the alleged incidents before the referee. The claimant testified in his own behalf, denying that he had improperly touched any of the students on any occasion.
In his decision, the referee found that the claimant engaged in a course of conduct in dealing with the students that was unacceptable under employer's standards. The referee determined that while claimant's demeanor at the hearing did not reflect that he would engage in said misconduct, the record as developed substantiated the charges of willful misconduct. The referee thus found the claimant ineligible for unemployment compensation benefits.
Without taking additional testimony, the Board found that the employer failed to prove the charges of willful misconduct, ...