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RICK W. JONES v. COMMONWEALTH PENNSYLVANIA (07/28/89)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: July 28, 1989.

RICK W. JONES, PETITIONER,
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT

PETITION FOR REVIEW (UNEMPLOYMENT COMPENSATION).

COUNSEL

Christopher C. Straub, Pyfer and Associates Lancaster, for petitioner.

Clifford F. Blaze, Deputy Chief Counsel and Maribeth Wilt-Seibert, Asst. Counsel, Harrisburg, for respondent.

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

Author: Doyle

[ 127 Pa. Commw. Page 636]

This case is before us on appeal from a decision of the Unemployment Compensation Board of Review (Board) which held that Rick W. Jones (Claimant) was not entitled

[ 127 Pa. Commw. Page 637]

    to benefits under Section 402(e) of the Unemployment Compensation Law (Law)*fn1 (willful misconduct).

Claimant was last employed as a vice president of Greiner Industries, Inc., (Employer) a welding and fabricating company, at a salary of $45,000 per year plus five percent of the corporation's net profit. Claimant began his employment in January 1982 and continued working there until he was fired on November 26, 1986. Subsequent to losing his job, he filed for unemployment compensation benefits and the Office of Employment Security (OES) issued a determination granting Claimant benefits. Claimant's Employer filed an appeal from that decision. A hearing was held and the referee issued an order affirming the decision of the OES. Employer then appealed that order to the Board, which reversed the referee and denied benefits. This appeal followed.

The Board made the following relevant factual determinations. Claimant, during the course of his employment, "engaged in an intimate personal relationship with the wife of Employer " (finding of fact No. 2). "As a result of this relationship, the work routine at the office was disrupted to the point that it decreased the efficiency of the administrative personnel" (finding of fact No. 3). The Board further found that Claimant knew or should have known that his actions would cause such a disruption, and that he was discharged for engaging in actions which were detrimental to the efficient administration of Employer's business.

On appeal, this Court must determine whether there is substantial evidence in the record to support a finding of willful misconduct. Section 704 of the Administrative Agency Law, 2 Pa.C.S. ยง 704.

We do believe that the Board's implicit finding that Claimant was engaged in an intimate personal relationship with Mrs. Brenda Greiner, the wife of Mr. Franklin Greiner, the president of Greiner Industries, Inc., is supported by the

[ 127 Pa. Commw. Page 638]

    record, even though the evidence presented was purely circumstantial. Circumstantial evidence, however, if substantial, will support a Board finding. See Heffelfinger v. Unemployment Compensation Board of Review, 60 Pa. Commonwealth Ct. 280, 431 A.2d 380 (1981). However, the Board, while first finding that Claimant was employed by Greiner Industries, Inc., went on and found that Claimant engaged in a meretricious relationship with " Employer's wife," thereby equating Employer with Employer's president. This was error. For purposes of determining ineligibility for benefits under Section 402(e), the proper inquiry is whether Claimant committed willful misconduct "connected with his work." Thus, absent a finding based upon substantial evidence that Claimant's conduct violated a work rule or was at odds with Employer's interest in the business sense, as distinguished from "Employer" personally, benefits cannot be denied.

The record, however, does not indicate that Claimant's performance at work deteriorated, or that he disregarded a work rule. The Board, as noted, found that Claimant's relationship with " Employer's wife " so disrupted the work routine at Greiner Industries that it decreased the efficiency of the administrative personnel, and that Claimant's actions were detrimental to the efficient administration of Employer's business. These findings if supported by substantial evidence, would clearly fit into the recited definition of willful misconduct. We do not believe, however, that these findings are supported by substantial evidence in the record.*fn2 The only testimony in the record regarding the decreased efficiency of the administrative personnel was given by "Employer" himself, i.e., Franklin Greiner. He testified that his employees were "coming to me telling me they could not work. They're gonna have to maybe look for another job because of all the pressures that's been going on."

[ 127 Pa. Commw. Page 639]

This testimony was not objected to by the Claimant. While it may show notice to the real Employer, it is hearsay and cannot, without corroboration, establish the truth or falsity of a decrease in efficiency. See Walker v. Unemployment Compensation Board of Review, 27 Pa. Commonwealth Ct. 522, 367 A.2d 366 (1976). Although Employer easily could have corroborated this testimony by having members of his administrative staff testify as to the tense atmosphere at work created by Claimant's relationship, or by introducing records to show a decline in the efficiency of his business, Employer failed to provide such corroboration. The only other evidence in the record was "Employer's" i.e., Franklin Greiner's vague claim that he had difficulty concentrating on his work because of his wife's relationship with Claimant.*fn3 This, conclusory statement, however, standing alone, is not substantial evidence and, hence, is insufficient to establish willful misconduct.*fn4

Finally, the Board's reliance upon Hackney v. Unemployment Compensation Board of Review, 60 Pa. Commonwealth Ct. 625, 432 A.2d 317 (1981), and Argentina v. Unemployment Compensation Board of Review, 29 Pa. Commonwealth Ct. 469, 371 A.2d 561 (1977), is not helpful. In Hackney, while the claimant contended she was discharged for rebuffing the employer's sexual advances, the Board found that she was discharged for work-related conduct. In Argentina, the claimant was discharged for threatening to send letters complaining of unwanted sexual advances to the employer's business associates. This too, unlike the instant case, evidences work-related conduct. In the case before the Court now, however, there was, quite

[ 127 Pa. Commw. Page 640]

    simply, not substantial evidence as a matter of law to establish work-related willful misconduct on the part of Claimant.

Based upon the foregoing discussion, we reverse the order of the Board.*fn5

Order

NOW, July 28, 1989, the order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby reversed.


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