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JAMES SAUER v. COMMONWEALTH PENNSYLVANIA (10/06/87)

decided: October 6, 1987.

JAMES SAUER, 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 James J. Sauer, B-238170.

COUNSEL

Paul W. O'Hanlon, Neighborhood Legal Services Association, for petitioner.

Patricia Krise Bilzi, Assistant Counsel, with her, Clifford F. Blaze, Deputy Chief Counsel, for respondent.

Judges Craig and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri.

Author: Barbieri

[ 110 Pa. Commw. Page 104]

In this unemployment compensation case, James Sauer, Claimant, appeals here an order of the Unemployment Compensation Board of Review (Board) denying his claim for unemployment compensation benefits and finding him liable for a fault overpayment recoupment. The Board found that he is ineligible for 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), due to his discharge for willful misconduct and that he is liable for a fault payment recoupment pursuant to Section 804(a) of the Law, 43 P.S. § 874(a), due to his providing false information on his application for benefits. We shall affirm.

[ 110 Pa. Commw. Page 105]

Sauer was last employed as a security guard by Federated Security (Employer) from December, 1983, through July 14, 1984. On July 14, 1984, he was terminated, according to the Employer, laid off according to Sauer, from his job as a security guard. Sauer was previously warned by the Employer to conform to the Employer's policy of wearing a complete uniform while on duty and to properly perform his duties as assigned by the Employer. When he filled out his initial application for benefits with the Office of Employment Security (OES), he certified that he had been laid off by the Employer due to lack of work. As a result, he collected and cashed two benefit checks, totaling $130.00, for the weeks ending October 20 and 27, 1984. After receiving the Employer's separation information, the OES determined that he was ineligible for benefits under 43 P.S. § 802(e), due to willful misconduct, and under 43 P.S. § 801(c), due to his failure to make a proper claim for benefits. The OES also determined that he had received a fault overpayment subject to recoupment under 43 P.S. § 874(a). Sauer appealed the OES determination to a referee who, after a hearing, upheld the OES and issued a decision finding him ineligible for benefits under 43 P.S. §§ 801(c) and 802(e) and subject to a fault overpayment recoupment under 43 P.S. § 874(a) in the amount of $130.00. On Sauer's appeal of the referee's decision, the Board affirmed.

In his appeal to this Court, Sauer contends that (1) necessary findings are not supported by substantial evidence; (2) his conduct does not amount to willful misconduct as used in 43 P.S. § 802(e); and (3) he did not provide false information to the OES on his application for benefits and is not subject to a fault overpayment recoupment under 43 P.S. § 874(a). Of course, our scope of review in unemployment compensation appeals is limited by Section 704 of the Administrative Agency

[ 110 Pa. Commw. Page 106]

Law, 2 Pa. C.S. § 704, to determining whether necessary findings are supported by substantial evidence, an error of law committed, whether the procedural provisions of the Administrative Agency Law, 2 Pa. C.S. §§ 501-508, have been complied with, or whether any constitutional rights of the claimant have been violated. Saxton v. Unemployment Compensation Board of Review, 71 Pa. Commonwealth Ct. 636, 455 A.2d 765 (1983).

Sauer initially contends that several of the Board's findings, that it adopted from the referee's decision, are not supported by substantial evidence. The sole finding of the Board that he directly challenges is finding 10, which provides:

10. The claimant's [Sauer's] services were terminated by the employer for continued violations of ...


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