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ROSE MARIE GESLAO v. COMMONWEALTH PENNSYLVANIA (01/09/87)

decided: January 9, 1987.

ROSE MARIE GESLAO, 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 Rose Marie Geslao, No. B-238074.

COUNSEL

Michelle R. Terry, with her, Andy Hartzell, for petitioner.

James K. Bradley, Associate Counsel, with him, Paul E. Baker, Acting Deputy Chief Counsel, for respondent.

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

Author: Colins

[ 103 Pa. Commw. Page 117]

Rose Marie Geslao (petitioner) appeals from a denial of unemployment compensation benefits by the Unemployment Compensation Board of Review (Board) on the grounds of willful misconduct pursuant to Section 402(e) of the Unemployment Compensation Law (Act), Act of December 5, 1936, Second Ex. Sess., (1937) P.L. 2897, as amended, 43 P.S. § 802(e). The Board in this case made new findings of fact and reversed the referee's award of benefits.

Petitioner was employed as a desk clerk by the Philadelphia Airport Marriott (employer) from September 19, 1983, until May 25, 1984, when she was specifically discharged because of errors which she made in the

[ 103 Pa. Commw. Page 118]

    performance of her duties. The incident which resulted in her dismissal was an overbooking of guests, caused by petitioner's failure to check a reservations list. This overbooking cost petitioner's employer the price of accommodations for three guests at another hotel, to its financial detriment.

After a hearing, the referee found that petitioner was discharged from her employment because her work performance was considered unsatisfactory by the employer and that she had informed the employer that she did not fully understand the procedures to be followed in her job and repeatedly requested assistance to lessen her number of mistakes. He further found that she performed her duties to the best of her ability and at no time deliberately violated any work rule of the employer and therefore, was not guilty of willful misconduct. On appeal, the Board found that petitioner had been repeatedly coached and counseled regarding her job duties, that she had received written warnings as a result of guests' complaints, and that her actions caused the overbooking of three guests. The Board's ultimate finding of fact was that "petitioner was discharged as a result of her negligence." In its discussion, the Board decided that the final incident which led to petitioner's discharge was an act that could and should have been prevented and, thus, that "her actions sank [sic] to the level of willful misconduct" as defined in Section 402(e) of the Act. We disagree.

The burden of proving willful misconduct is upon the employer. Lake v. Unemployment Compensation Board of Review, 48 Pa. Commonwealth Ct. 138, 409 A.2d 126 (1979). Our scope of review is limited to determining whether the Board's decision is supported by substantial evidence. See Section 704 of the Administrative Agency Act, 2 Pa. C.S. § 704. See also Estate of McGovern v. State Employees' Retirement Board, 512 Pa. 377,

[ 103 Pa. Commw. Page 119517]

A.2d 523 (1986). In this case, the burden was on the employer to prove that petitioner's errors rose to the level of willful misconduct. Whether or not an employee's conduct constitutes willful misconduct is a question of law subject to our review, and we must make that determination in light of all the circumstances. White v. ...


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