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THOMAS E. MILLS v. COMMONWEALTH PENNSYLVANIA (04/07/88)

decided: April 7, 1988.

THOMAS E. MILLS, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeal from the Order of the Unemployment Compensation Board of Review in the case of In Re: Claim of Thomas E. Mills, No. B-259568.

COUNSEL

Stephen M. Schmerin, for petitioner.

Peter E. Horne, for intervenor, City of New Castle.

Judges Barry and Smith, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Smith.

Author: Smith

[ 115 Pa. Commw. Page 278]

Petitioner Thomas E. Mills (Claimant) appeals from an order of the Unemployment Compensation Board of Review (Board) reversing the referee's decision and denying unemployment benefits to Claimant under Section 3 of the Pennsylvania Unemployment Compensation Law (Law)*fn1 (declaration of public policy that benefits will be granted only to persons unemployed through no fault of their own). The issue presented in this appeal is whether a claimant who commits and pleads guilty to the crime of receiving stolen property and is discharged as a consequence thereof is ineligible to receive benefits under Section 3 of the Law.*fn2 The Board's decision and order is vacated and the case is remanded.

Claimant was employed by the City of New Castle (Employer) as an animal warden from April, 1973 until January 21, 1987, the date of his termination. Claimant was charged with two counts of receiving stolen property on June 28, 1985 and August 2, 1985, respectively. He pled guilty to these charges on November 14, 1985 and was subsequently sentenced on June 19, 1986 to five years probation and costs and restitution in the amount of $5,450.00.

Claimant filed for unemployment compensation benefits effective April 12, 1987. The Office of Employment

[ 115 Pa. Commw. Page 279]

Security (OES) denied Claimant's application pursuant to Section 402(e),*fn3 and after a hearing on Claimant's appeal, the referee reversed the OES determination and granted benefits. Employer appealed to the Board, which reversed the decision of the referee and concluded that Claimant was ineligible for benefits under provisions of Section 3 of the Law.

This Court's narrow scope of review in unemployment compensation cases is restricted to a determination of whether necessary findings of fact are supported by substantial evidence; whether an error of law was committed below; or whether any of the Claimant's constitutional rights have been violated. Estate of McGovern v. State Employees' Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986); Kirkwood v. Unemployment Compensation Board of Review, 106 Pa. Commonwealth Ct. 92, 525 A.2d 841 (1987).

Section 3 of the Law provides for unemployment benefits to persons unemployed through no fault of their own. Where, as here, criminal conduct is involved, the employer has the burden of proving: (1) that the conduct of Claimant leading to the conviction was inconsistent with acceptable standards of behavior and (2) that Claimant's conduct directly reflects upon his ability to perform his assigned duties. Snelson v. Unemployment Compensation Board of Review, 93 Pa. Commonwealth Ct. 539, 502 A.2d 734 (1985); Unemployment Compensation Board of Review v. Derk, 24 Pa. Commonwealth Ct. 54, 353 A.2d 915 (1976). This test first ...


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