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GEORGE W. SHEARER v. COMMONWEALTH PENNSYLVANIA (06/02/86)

decided: June 2, 1986.

GEORGE W. SHEARER, 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 George W. Shearer, No. B-233774.

COUNSEL

Paul J. Elias, for petitioner.

James K. Bradley, Associate Counsel, with him, Charles G. Hasson, Acting Deputy Chief Counsel, for respondent.

Judges MacPhail, Doyle, and Barry, sitting as a panel of three. Opinion by Judge Barry.

Author: Barry

[ 97 Pa. Commw. Page 579]

This is an appeal by claimant, George W. Shearer, from an order of the Unemployment Compensation Board of Review (Board) adopting and affirming the decision of the referee which denied benefits under Section 402(e) of the Unemployment Compensation Law (Act), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. ยง 802(e).

Claimant was a substitute teacher with the Mount Pleasant School District from the Spring of 1983 until November 1, 1983. He was certified in biological science and general sciences. He earned $40.00 per day. In October of 1983, the regular chemistry teacher informed Mount Pleasant that he would be absent due to an extended illness. Claimant was notified by Mrs. Debbie Ponko, the principal's secretary, that he was to report daily to teach chemistry until further notice. The record shows that substitute teachers were called on a day to day, as needed, basis unless, as here, they were informed that their assignment would be long term. Claimant was not certified in chemistry but was assigned to these duties by the principal, Mr. James McKenna, because his area of specialization was closely related to chemistry. The crux of the dispute revolves around claimant's dissatisfaction with teaching a class in which he was not certified. At the referee's hearing,

[ 97 Pa. Commw. Page 580]

    claimant maintained that, on November 1, 1983, he and Mr. McKenna had reached an understanding that because he was not certified, he was not to teach the chemistry class. Mr. McKenna testified for employer that, after the November 1st discussion with claimant, he expected that claimant would seek any necessary assistance from the head of the chemistry department but would continue to report. Mrs. Ponko testified that the following day, November 2, 1983, claimant called to report off work due to a minor automobile accident. Claimant never reported again. Claimant denies that he ever contacted or was contacted by the school between November 1st and November 7th. According to her testimony, when Mrs. Ponko contacted him on November 7th, about the chemistry class assignment, he informed her that Mr. McKenna and he had reached an understanding that he was not to teach the chemistry class. When this statement was relayed to Mr. McKenna he informed Mrs. Ponko not to contact claimant again.

The referee found that employer was aware that claimant was not certified in chemistry and that the employer did not violate any Department of Education laws or regulations by assigning claimant to the chemistry class, that claimant was offered and accepted the chemistry class assignment but did not report, initially because he was working for another school district for several days and then, after reporting for two days (October 31st and November 1st, which was the day that claimant alleges that he discussed his assignment with Mr. McKenna), because he was of the opinion that he was not qualified to teach chemistry due to his lack of certification. In addition, the referee found the claimant was discharged on November 7th (the date Mr. McKenna testified that he informed Mrs. Ponko that she should no longer contact claimant) and that he was notified of his discharge. The referee denied benefits

[ 97 Pa. Commw. Page 581]

    concluding that claimant's conduct was inimical to employer's interests thus constituting willful misconduct. The factual findings were incorporated into the Board's decision after both parties agreed in a stipulation of the facts. The Board subsequently affirmed and this appeal followed.

Claimant does not ground his appeal on the Board's conclusion that he was guilty of willful misconduct. Claimant, on appeal, argues only that the Board's finding that he was notified of his discharge is unsupported by the record, that he was not notified of his discharge and that, therefore, his ...


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