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PATRICIA E. BURKE v. COMMONWEALTH PENNSYLVANIA (08/07/86)

decided: August 7, 1986.

PATRICIA E. BURKE, 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 In Re: Claim of Patricia E. Burke, No. B-238082.

COUNSEL

Thomas E. Timby, Timby and Dillon, P.C., for petitioner.

Jonathan Zorach, 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

[ 99 Pa. Commw. Page 501]

This appeal results from an order of the Unemployment Compensation Board of Review (Board) which reversed the decision of a referee granting benefits to the claimant, Patricia E. Burke (claimant).

Claimant was employed, before her separation, as the office manager for her ophthalmologist employer, Dr. Brian Altman (employer). Claimant had worked in this capacity from October, 1982, to September 21, 1984. As found by both referee and Board, claimant was discharged, ostensibly, "because her work performance and attitude toward patients" failed to meet the employer's standards and expectations. In reversing the referee and denying benefits, the Board held that the record supported the employer's allegations that "the claimant was referring patients to other doctors, [was] studying for school while working, and [was] using the xerox machine for personal reasons." Board Finding of Fact No. 3.

Undertaking our own review, we are limited to a determination of whether the Board's findings of fact are supported by substantial evidence and whether an error of law was committed. James v. Unemployment Compensation Board of Review, 59 Pa. Commonwealth Ct. 230, 233, 429 A.2d 782, 783 (1981). Whether conduct is so egregious as to constitute willful misconduct is, of course, a question of law subject to our review. Kentucky Fried Chicken of Altoona, Inc. v. Unemployment Compensation Board of Review, 10 Pa. Commonwealth Ct. 90, 97, 309 A.2d 165, 169 (1973).

In order to substantiate its allegation of willful misconduct, employer testified personally with respect to

[ 99 Pa. Commw. Page 502]

    claimant's objectionable conduct, and, in addition, obtained testimony to the same effect from two other office workers. Concerning the studying, employer testified that "[s]he would study nursing school on my time and not doing [sic] her job[;] I saw her with her notes for nursing school on two occasions in my office. . . ." (N.T. at 7.) Fellow employees, meanwhile, testified that they heard claimant referring patients to other ophthalmologists. (N.T. at 28, 32-33.) First-hand testimony was also adduced to support the allegation that claimant had been using employer's xerox machine for a part-time employer. (N.T. at 29.)

Our careful review of the record reveals to us little support for the Board's finding that claimant's studying and xeroxing embraced willful misconduct. The employer testified, indeed, that these activities were tolerated, apparently in ...


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