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BRUCE E. SHEARER v. COMMONWEALTH PENNSYLVANIA (06/16/87)

decided: June 16, 1987.

BRUCE E. 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 In Re: Claim of Bruce E. Shearer, No. B-240871.

COUNSEL

John W. Purcell, Jr., Purcell, Nissley, Krug & Haller, for petitioner.

Jonathan Zorach, Associate Counsel, with him, Clifford F. Blaze, Deputy Chief Counsel, for respondent.

Judges Barry and Palladino (p.), and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Barry.

Author: Barry

[ 106 Pa. Commw. Page 620]

Bruce E. Shearer, claimant, appeals from an order of the Unemployment Compensation Board of Review (Board) affirming the referee's denial of benefits under Section 402(e) of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e).

Claimant was employed by Comsen, employer, as a computer programmer for approximately ten months. On his discharge, he applied for unemployment compensation benefits at the Office of Employment Security (OES). The OES determined that claimant was ineligible for benefits because he violated his employment contract with employer. Claimant appealed this determination to the referee who affirmed the decision of the

[ 106 Pa. Commw. Page 621]

OES but on different grounds. The referee's determination was based on his finding that claimant was guilty of willful misconduct due to his poor work performance. On appeal, claimant argues that the referee was precluded from addressing the issue of poor work performance because the OES did not rule on that issue. The claimant further maintains that, even if the referee's actions were proper, his determination that claimant was guilty of poor work performance is not supported by substantial evidence. Claimant urges that, because it was demonstrated at the referee's hearing that the OES determination was incorrect and that the OES failed to rule on any other grounds, this matter should be reversed.

The employer bears the burden, in an unemployment compensation case, of proving that its former employee was guilty of willful misconduct. Wysocki v. Unemployment Compensation Board of Review, 87 Pa. Commonwealth Ct. 260, 487 A.2d 71 (1985).

Our scope of review is limited to a determination of whether constitutional rights were violated, an error of law was committed, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704; Estate of McGovern v. State Employees' Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986).

The first issue before us is whether the referee and Board were precluded from addressing the issue of whether claimant's poor work performance constituted willful misconduct when the OES denied benefits solely on a finding that claimant violated the employment contract by working for a competitor.

In Hanover Concrete Company v. Unemployment Compensation Board of Review, 43 Pa. Commonwealth Ct. 463, 402 A.2d 720 (1979), we held that "the Board may only consider ...


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