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BISHOP CARROLL HIGH SCHOOL v. COMMONWEALTH PENNSYLVANIA (04/21/89)

decided: April 21, 1989.

BISHOP CARROLL HIGH SCHOOL, 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 John W. Kuskoski, No. B-264138.

COUNSEL

Maura K. Quinlan, with her, Philip J. Murren, Ball, Skelly, Murren & Connell, for petitioner.

No appearance for respondent.

Michael K. Parrish, for John W. Kuskoski, intervenor.

President Judge Crumlish, Jr., and Judges Craig, Doyle, Barry, Colins, McGinley and Smith. Opinion by Judge McGinley. Judge Smith dissents. Dissenting Opinion by Judge Colins. Judge Smith joins in this Dissenting Opinion. Dissenting Opinion by Judge Barry. Judge Smith joins in this dissent.

Author: Mcginley

[ 125 Pa. Commw. Page 303]

Bishop Carroll High School (Bishop Carroll) appeals from a decision of the Unemployment Compensation Board of Review (Board) granting unemployment compensation benefits to John W. Kuskoski (Kuskoski). We reverse.

Kuskoski was a biology teacher at Bishop Carroll for 6 1/4 years prior to his discharge on November 10, 1987. The contract which he entered into on June 1, 1987, stated that "[t]he terms and conditions of employment are those stipulated in the agreement signed 10-27-86 between the Diocese of Altoona-Johnstown and the Altoona-Johnstown Catholic School Teachers' association."

[ 125 Pa. Commw. Page 304]

The preamble of that agreement stated that "Subject to the laws of the Church, the Ordinary shall maintain the sole prerogative to dismiss a teacher for serious or public immorality, public scandal, or rejection of official teaching, doctrine, or laws of the Roman Catholic Church." Kuskoski had been given a copy of this preamble.

In late September of 1987, Kuskoski advised the principal of Bishop Carroll that he was cohabiting with a divorced woman to whom he was not married, and whose prior marriage had not been annulled. The principal advised Kuskoski that his behavior violated the terms of his employment contract. Kuskoski was advised that he would be discharged if he continued to cohabit outside of marriage. Kuskoski, in an attempt to avoid discharge, proposed to marry the woman in a civil ceremony, pursue an annulment of the woman's earlier marriage, and then be married in a Catholic Church. The principal advised Kuskoski that Church teachings require that the woman's prior marriage be annulled before she could be married again, and that Kuskoski's marriage to her without an annulment would also violate Church teachings and would constitute grounds for discharge. Kuskoski was given an opportunity to consider his options and he chose to continue to cohabit outside of marriage. He was discharged on November 10, 1987.*fn1

Kuskoski applied for unemployment compensation benefits. The Office of Employment Security (OES) denied the application and Kuskoski filed an appeal for a hearing before the referee. The referee affirmed the denial of benefits pursuant to Section 402(e) of the Unemployment Compensation Law, 43 P.S. ยง 802(e).*fn2 Kuskoski

[ 125 Pa. Commw. Page 305]

    filed an appeal with the Board, which reversed the decision of the referee and granted benefits. The Board determined that Bishop Carroll failed to prove that Kuskoski's action constituted willful misconduct.*fn3 Bishop Carroll brought the within Petition for Review.

Bishop Carroll contends that the Board erred in concluding that Bishop Carroll failed to prove that Kuskoski's conduct constituted willful misconduct. Bishop Carroll further contends that Kuskoski did not have good cause for this conduct. Bishop Carroll also contends that the Board's decision violates Bishop Carroll's first amendment rights by imposing a burdensome tax on religion. In response, Kuskoski claims that his constitutional right to privacy would be violated by a denial of unemployment benefits.

Our scope of review is limited to a determination of whether necessary facts are supported by substantial evidence, whether an error of law was committed, or whether any constitutional rights have been violated. Kirkwood v. Unemployment Compensation Board of Review, 106 Pa. Commonwealth Ct. 92, 525 A.2d 841 (1987).

Bishop Carroll argues that Kuskoski's conduct constituted willful misconduct because he was specifically warned that if he continued to live outside of matrimony with a divorced woman he would be discharged, and because he knowingly continued his prohibited conduct. Bishop Carroll further contends that Kuskoski did not have good cause for his actions.

[ 125 Pa. Commw. Page 306]

Willful misconduct has been defined as a disregard by an employee of the employer's interests, a deliberate disregard of the employer's rules, or a disregard of the standards of behavior that an employer has a right to expect of an employee. Furmento v. Unemployment Page 306} Compensation Board of Review, 466 Pa. 81, 351 A.2d 631 (1976). In the case sub judice, Bishop Carroll charges Kuskoski with having violated a work rule. The burden of proof in violation of rule cases is well-established.

The employer bears the burden of proving that an employee was discharged for willful misconduct so as to render the employee ineligible for benefits. . . . Where the willful misconduct is based upon a violation of an employer rule or policy, the employer must establish the ...


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