Grossman v. Commonwealth, Unemployment Compensation Board of Review

387 A.2d 1335, 36 Pa. Commw. 311, 1978 Pa. Commw. LEXIS 1146
CourtCommonwealth Court of Pennsylvania
DecidedJune 27, 1978
DocketAppeal, No. 102 C.D. 1977
StatusPublished

This text of 387 A.2d 1335 (Grossman v. Commonwealth, Unemployment Compensation Board of Review) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Grossman v. Commonwealth, Unemployment Compensation Board of Review, 387 A.2d 1335, 36 Pa. Commw. 311, 1978 Pa. Commw. LEXIS 1146 (Pa. Ct. App. 1978).

Opinion

Opinion by

Judge Crumlish, Jr.,

Ronald P. Grossman (Claimant) appeals a decision of the Unemployment Compensation Board of Review which, after remand by this Court, affirmed a referee’s denial of benefits.

On April 22, 1974, Claimant was instructed by his superiors in the Pennsylvania State Police (Employer) to travel from New Castle, Pennsylvania, where he was stationed, to Erie, Pennsylvania, pursuant to an insurance fraud investigation. Claimant’s normal working hours were 8 o’clock A.M. to 4:30 P.M. However, at 3:30 P.M. that day, Claimant received permission from his headquarters to work two additional hours. Subsequent thereto, Appellant drove from Erie [313]*313to West Pittsburg located in Lawrence County. Later that evening, a caller telephoned one of Claimant’s superiors, Lieutenant Fonseca, complaining of Claimant’s conduct. Through interviews and reports from third parties, Lieutenant Fonseca was told that Claimant discharged a weapon; that he had been seen drinking at a private club; that Claimant was also seen shooting pool for drinks in a private club; and that Claimant had illegally parked his official vehicle on a sidewalk. As a result of these allegations and his refusal to answer any questions concerning his whereabouts that evening, Claimant was suspended for a period of 30 days.

In addition to the 30-day suspension, Claimant was suspended for a five-day period for failure to properly report an absence due to illness. After an initial decision by the Board affirming the referee’s denial of benefits based upon this conduct, Claimant appealed to this Court which remanded the case to the Board for the purpose of providing more detailed and precise findings of fact. On remand, the Board, without taking additional testimony, rendered a second decision affirming the referee. Claimant appeals this denial of benefits to our Court.

Claimant first raises for our consideration his contention that the findings of fact are not supported by substantial evidence of record. We disagree. The findings of the Board alleged by Claimant to be relevant to this inquiry are the following:

2. On April 24, 1974, the claimant was granted permission by his superior to work overtime and return late from Erie where he was conducting an investigation using a state automobile.
3. A rule of the Pennsylvania State Police, known to the claimant, required that he report back from overtime duty and return his state [314]*314vehicle to his headquarters when his work for that day was eonpleted [sic].
4. The claimant failed to report to his superiors when he returned from Erie and did not return his state car to his headquarters.
5. A rule of the Pennsylvania State Police, known to the claimant, required that a member unable to report for duty because of illness should immediately notify his superior of the nature of the illness, where he will be recuperating, and his expected time of return to duty.
6. On April 23, 1974, the claimant did not report to his headquarters and did not properly report his absence due to illness. The claimant later claimed that he had been ill.
7. The claimant did not report to his duty station until April 25, 1974.
8. The claimant received a disciplinary suspension of 30 days beginning July 1, 1974 because of his violation of State Police regulations.

Based upon these findings, the Board concluded that Claimant was ineligible for benefits under Section 402 (e) of the Unemployment Compensation Law (Act), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e).

Claimant initially argues that the second finding of fact is without support in the record. He correctly points out that the date indicated, April 24, 1974, is factually in error and that the incident alleged to have occurred relates to events which transpired on April 22, 1974. However, we cannot conclude that this apparent typographical inaccuracy by the Board amounts to reversible error. As counsel for the Board astutely observes in his brief, Claimant has not suggested that he was detrimentally misled by this insignificant error.

[315]*315Claimant next disputes the Board’s third finding of fact. Section 2.17 of the Pennsylvania State Police Field Regulations (Regulations) states as follows:

USE OF OFFICIAL VEHICLES
A Member shall not use a Commonwealth vehicle for personal business or for any other reason except as authorized. Out-of-State travel will be permitted only in accordance with existing regulations. A Member shall not use his personal vehicle for official business unless specifically authorized to do so by his Troop Commander or Division Director.

As Claimant notes, the Board’s third finding of fact does not exactly parallel the above quoted regulation. However, this finding of fact is supported by the record when the regulation above is viewed in conjunction with the testimony of one of Claimant’s superiors, Lieutenant Fonseca. This witness specifically testified that he had given Claimant permission to work for one additional two-hour period only and Claimant was instructed to return to his station in New Castle at the termination of his overtime. This authorization considered in conjunction with Section 2.17 of the Regulations permitted Claimant to use his official vehicle merely for that time required of him to return to the station at the end of the approved two-hour overtime.

Claimant next disputes the Board’s fourth finding of fact. However, the testimony of Lieutenant Fonseca that Claimant did not report to his station with his official vehicle until the day following his investigation in Erie adequately supports this finding.

Claimant next contends that these findings do not, as a matter of law, amount to willful misconduct. We disagree. Though not statutorily defined, willful misconduct as that term is used in Section 402(e) of the [316]*316Act, has been judicially developed to encompass the wanton and willful disregard of an employer’s interest, a deliberate violation of the employer’s rules, a disregard of expected behavior standards or negligence manifesting culpability, wrongful intent, evil design or an intentional disregard of the employer’s interest or the employee’s obligations to the employer. Serban v. Unemployment Compensation Board of Review, 29 Pa. Commonwealth Ct. 147, 370 A.2d 755 (1977). Moreover, an employer has the burden of proof with regard to willful misconduct. Kentucky Fried Chicken of Altoona, Inc. v. Unemployment Compensation Board of Review, 10 Pa. Commonwealth Ct. 90, 309 A.2d 165 (1973). We are convinced that Employer has met this burden. As the findings of fact indicate, Claimant committed a deliberate violation of Employer’s rules. He was specifically told by Lieutenant Fonseca to return to the station upon the completion of his two hours of overtime. Furthermore, the record establishes that Claimant possessed a copy of Employer’s Eegulations, including Section 2.17 pertaining to unauthorized use of official vehicles.

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Related

Serban v. Unemployment Compensation Board of Review
370 A.2d 755 (Commonwealth Court of Pennsylvania, 1977)

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Bluebook (online)
387 A.2d 1335, 36 Pa. Commw. 311, 1978 Pa. Commw. LEXIS 1146, Counsel Stack Legal Research, https://law.counselstack.com/opinion/grossman-v-commonwealth-unemployment-compensation-board-of-review-pacommwct-1978.