Appeal from the Order of the Unemployment Compensation Board of Review, in case of In Re: Claim of Jon S. Granoff, No. B-249399.
G. David Pauline, Bricker & Pauline, for petitioner.
Gary L. Kelley, Assistant Counsel, with him, Clifford F. Blaze, Deputy Chief Counsel, for respondent.
Judges Craig and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Craig. Judge Palladino dissents.
[ 109 Pa. Commw. Page 588]
Pennsylvania National Insurance Company (PNI) appeals a decision of the Pennsylvania Unemployment Compensation Board of Review affirming a referee's award of benefits to former employee Jon S. Granoff. The employer argues that the board should have denied claimant benefits under the provisions of section 402(e) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e) (willful misconduct).
In unemployment compensation cases, the employer bears the burden of proving the employee's willful misconduct. Fusaro v. Unemployment Compensation Board of Review, 85 Pa. Commonwealth Ct. 507, 483 A.2d 1013 (1984). The sole issue on appeal is whether the employer met this burden.
[ 109 Pa. Commw. Page 589]
Claimant worked for PNI since 1969; his last position was that of claims supervisor. The officers of PNI began an investigation of claim adjustment procedures at claimant's office after receiving an anonymous note which suggested that claims by PNI employees were being handled differently than claims by non-employees. The investigators investigated 103 claim files, 21 of which claimant handled. PNI claims that there were deficiencies in all of claimant's 21 files. The investigators also evaluated some 700 other files in the office. Sixty of these files had deficiencies, 6 of which were claimant's. PNI auditors found this small percentage of deficient files acceptable.
PNI's house counsel interviewed claimant regarding the 21 employee claim files. PNI then discharged claimant on the ground that he improperly handled employee claims for the benefit of the employees.
In awarding benefits, the board found that the claimant treated all claims filed by PNI employees in the same manner as claims by non-employees, in accordance with accepted standards; and that claimant processed these claims to the best of his ability and that any deficiencies were inadvertent.
The findings of a referee, which are affirmed by a board, are binding on this court when supported by substantial evidence, though there is record evidence to the contrary. Johnson v. Unemployment Compensation Board of Review, 95 Pa. Commonwealth Ct. 183, 504 A.2d 989 (1986). In this case, the board's factual findings are supported by substantial evidence. However, whether specific conduct rises to the level of willful misconduct is a question of law ...