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THEODORE J. GIGLIO v. COMMONWEALTH PENNSYLVANIA (06/12/89)

decided: June 12, 1989.

THEODORE J. GIGLIO, PETITIONER,
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



PETITION FOR REVIEW (UNEMPLOYMENT COMPENSATION).

COUNSEL

Armand E. Olivetti, Jr., Olivetti and Scacchitti, Scranton, for petitioner.

Clifford F. Blaze, Deputy Chief Counsel, Wade A. Fluck, Asst. Counsel, Harrisburg, for respondent.

Crumlish, Jr., President Judge, and Craig, Doyle, Barry, Colins, McGinley and Smith, JJ.

Author: Barry

[ 126 Pa. Commw. Page 473]

OPINION

Theodore J. Giglio (Claimant) petitions for our review of an order of the Unemployment Compensation Board of Review (Board) affirming a referee's decision to deny benefits. The Board modified the referee's decision, however, determining that the Claimant was 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) (willful misconduct)

[ 126 Pa. Commw. Page 474]

    rather than Section 402(b) of the Law, 43 P.S. § 802(b) (voluntary quit) as determined by the referee. We affirm.

The Claimant was employed as an adult probation officer by Lackawanna County Adult Probation. In May of 1987 he sought nomination for the position of District Justice and won. By letter dated July 20, 1987, James J. Walsh, President Judge of the Court of Common Pleas of Lackawanna County, notified the Claimant that a June 29, 1987 order of the Supreme Court of Pennsylvania prohibited him, as a court-appointed employee, from being a candidate for public office. He was given the option of resigning from his position or dropping out of the race for public office. Further, he was notified that his failure to choose either of these options would result in his discharge. On July 29, 1987, after choosing to remain in the race and not resign from his position, the Claimant was discharged.

The Claimant applied for unemployment compensation benefits with the Office of Employment Security (OES) which denied his application concluding that he had voluntarily terminated his employment without cause of a necessitous and compelling nature. He appealed the OES's determination to the referee who affirmed on the same basis. He then appealed to the Board which affirmed but on the grounds that the Claimant was guilty of willful misconduct. The Claimant now appeals to this Court.

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

Willful misconduct has been defined as a wanton and willful disregard of an employer's interests, a deliberate violation of an employer's rules, a disregard of the standards of behavior which an employer can rightfully expect of an employee, or negligence manifesting culpability, wrongful intent, evil design or intentional and substantial

[ 126 Pa. Commw. Page 475]

    disregard of an employer's interests or an employee's duties and obligations. Frumento v. Unemployment Compensation Board of Review, 466 Pa. 81, 351 A.2d 631 (1976). Whether the Claimant's conduct constitutes willful misconduct is a question of law and as such is subject to our review. Id. Where, as here, it is alleged that the Claimant has violated a rule, the employer bears the burden of proving the existence of the rule and its violation. Partsch v. Unemployment Compensation Board of Review, 64 Pa. Commonwealth Ct. 293, 439 A.2d 1331 (1982). If both of these are proven the Claimant must show good cause to justify the rule violation in order to be eligible for benefits. Id. Further, we have noted that a claimant may defend against a charge of willful misconduct by showing that the rule is unreasonable or that his refusal to obey the rule is reasonable. Ellis v. Unemployment Compensation Board of Review, 68 Pa. Commonwealth Ct. 617, 449 A.2d 881 (1982). The Claimant argues in the case before us that his violation of the work rule was reasonable and, further, that the failure of the unemployment compensation authorities to award him benefits violates the First Amendment as applied to the Commonwealth through the Fourteenth Amendment of the United States Constitution in that no compelling state interest has been shown to support this infringement of his right to engage in political activity. He does not challenge the reasonableness of the rule.*fn1

We note, as did Chief Justice Nealon of the United States District Court for the Middle District of Pennsylvania in Giglio v. Supreme Court of Pennsylvania, 675 F.Supp. 266 (M.D.Pa.1987), that the memoranda of the Court Administrator of Pennsylvania affecting the Claimant's case do not appear in the record. They do, however, appear in our Supreme Court's ...


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