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SHERRY L. BRAUN v. COMMONWEALTH PENNSYLVANIA (04/03/86)

decided: April 3, 1986.

SHERRY L. BRAUN, 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 Sherry L. Braun, No. G-232344.

COUNSEL

Frayda Kamber, Kury & Kamber, for petitioner.

Daniel T. Booth, Legal Intern, with him, Charles G. Hasson, Acting Deputy Chief Counsel, for respondent.

Judges MacPhail and Colins, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Colins.

Author: Colins

[ 96 Pa. Commw. Page 239]

Sherry L. Braun (claimant) appeals from a decision of the Unemployment Compensation Board of Review (Board) denying her benefits on the basis of willful misconduct

[ 96 Pa. Commw. Page 240]

    pursuant to Section 402(e) of the Unemployment Compensation Law (Act).*fn1

Claimant was employed as a nursing assistant by Mansion Nursing Home (employer) for a period of nearly four years. She was terminated on March 26, 1984, because of her negligent failure to restrain an infirmed patient on a commode. Claimant left the patient unattended and unrestrained on the commode as she left the room. The patient fell and suffered serious injuries. Claimant testified that she had called for another nurse to restrain the patient in her absence, but later learned that the nurse she allegedly called to for assistance never heard or acted on her request for assistance. Nonetheless, the claimant left the patient unattended.*fn2

Claimant makes several arguments in support of reversing the Board and granting benefits, none of which we find persuasive. The burden of proving willful misconduct is on the employer. Lake v. Unemployment Compensation Board of Review, 48 Pa. Commonwealth Ct. 138, 409 A.2d 126 (1979). The standard of review where the party bearing the burden of proof has prevailed is whether an error of law has been committed or whether any necessary finding of fact is unsupported by substantial evidence in the record. Swope v. Unemployment Compensation Board of Review, 91 Pa. Commonwealth Ct. 459, 461, 497 A.2d 289, 290 (1985).

Claimant argues first that substantial evidence supported the referee's findings of fact. This argument is misplaced. In this case, the Board reversed the referee's

[ 96 Pa. Commw. Page 241]

    award of benefits and made its own findings of fact. The Board is the ultimate factfinder and questions of credibility and conflicts of testimony are to be resolved by the Board. Saxton v. Unemployment Compensation Board of Review, 71 Pa. Commonwealth Ct. 636, 455 A.2d 765 (1983). Our Supreme Court has recently reaffirmed the ultimate factfinder role of the Board in Peak v. Unemployment Compensation Board of Review, 509 Pa. 267, 501 A.2d 1383 (1985). Consequently, the referee's resolution of conflicting testimony is irrelevant to the outcome of the case, and our scope of review here is determining whether the Board's findings were ...


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