Summary
In Dunbar v. Unemployment Compensation Board of Review, 82 Pa.Cmwlth. 575, 475 A.2d 1355 (1984), this Court rejected the notion that claimant's discharge from employment based solely on a provision of the Governor's Code of Conduct, which required Commonwealth employees charged and convicted of a felony to be discharged from employment, constituted willful misconduct under Section 402(e) of the Law.Dunbar, 475 A.2d at 1356–57.
Summary of this case from Palladino v. Unemployment Comp. Bd. of ReviewOpinion
Argued April 30, 1984
May 30, 1984.
Unemployment compensation — Wilful misconduct — Burden of proof — Scope of appellate review — Error of law — Findings of fact — Substantial evidence — Violation of Governor's Code of Conduct Felony conviction — Off-duty misconduct — Assault — Domestic dispute.
1. In an unemployment compensation case where the employer with the burden of establishing wilful misconduct prevails below, review by the Commonwealth Court of Pennsylvania is limited to questions of law and a determination of whether findings are supported by substantial evidence. [577-8]
2. Although a violation of the Governor's Code of Conduct by a Commonwealth employe by committing a felony during off-duty hours justifies dismissal, such a violation does not constitute wilful misconduct precluding receipt of unemployment compensation benefits after such discharge when the criminal conduct was not connected with his work and did not reflect adversely upon his fitness or ability to perform his employment duties. [578-9]
3. Conviction for assault arising from a domestic dispute occurring during off-duty hours does not reflect adversely on fitness to be a maintenance mechanic and does not constitute wilful misconduct precluding receipt of unemployment compensation benefits when discharged as a result of such conviction. [579]
Argued April 30, 1984, before Judges ROGERS, MacPHAIL and BARBIERI, sitting as a panel of three.
Appeal, No. 10 C.D. 1983, from the Order of the Unemployment Compensation Board of Review, in case of In re: Claim of Samuel Dunbar, Jr., No. B-212588.
Application to the Office of Employment Security for unemployment compensation benefits. Benefits denied. Applicant appealed to the Unemployment Compensation Board of Review. Denial affirmed. Applicant appealed to the Commonwealth Court of Pennsylvania. Held: Reversed.
Geoffrey M. Biringer, for petitioner.
Michael D. Alsher, Associate Counsel, with him, Charles Hasson, Deputy Chief Counsel, and Richard L. Cole, Jr., Chief Counsel, for respondent.
Samuel Dunbar, Jr. has appealed from an order of the Unemployment Compensation Board of Review which affirmed a referee's decision denying him unemployment compensation benefits by reason of his asserted willful misconduct, pursuant to Section 402 (e) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P. S. § 802(e).
The claimant was last employed as a maintenance repairman by the Commonwealth of Pennsylvania, Department of General Services. In August, 1981, he was involved in a domestic altercation which resulted in his being arrested and charged with aggravated assault. On December 30, 1981, while on annual leave from his employment, the claimant was incarcerated pending trial on the assault charge. Because of his incarceration, the claimant did not report to work on January 4, 1982 as scheduled, but them following day he contacted his supervisor and informed him that due to his circumstances he would not be able to return to work until at least January 27, 1982, the date of his trial. The claimant was suspended from his employment as of January 4, 1982 as mandated by Section 7.173 of the Governor's Code of Conduct. 10 Pa. B. 4020 (1981). He was subsequently convicted of simple assault and sentenced to three to twelve months imprisonment. As a result of this conviction, he was discharged by the Department of General Services.
The claimant was released from prison on July 15, 1982 and applied for unemployment compensation for the period following his release. The Office of Employment Security notified the claimant in writing that he was ineligible for compensation because his separation from employment was the result of his willful misconduct, consisting of his arrest on a felony charge in violation of the Governor's Code of Conduct. The claimant appealed and the referee approved the denial of benefits finding that the claimant had violated the Governor's Code of Conduct. The Board of Review affirmed.
The issue here is whether the claimant's violation of the Governor's Code of Conduct per se constitutes willful misconduct making him ineligible to receive unemployment compensation.
In willful misconduct cases, the burden of establishing the claimant's ineligibility is on the employer, and our scope of review is limited to questions of law and to a determination of whether the board's findings are supported by substantial evidence. Gallagher v. Unemployment Compensation Board of Review, 36 Pa. Commw. 599, 388 A.2d 785 (1978). The question of whether or not a claimant's conduct constitutes willful misconduct is, of course, one of law and subject to our review. Miller v. Unemployment Compensation Board of Review, 52 Pa. Commw. 151, 415 A.2d 454 (1980).
We note that the determination that the claimant was discharged for willful misconduct was not based upon his absence from work while he was in prison but solely on his arrest and conviction on a felony charge made a cause for discharge by the Governor's Code of Conduct.
As will be observed, there is a sharp difference in law between cause for discharge under the Governor's Code of Conduct and willful misconduct which bars the receipt of unemployment compensation. See also Grace v. Unemployment Compensation Board of Review, 50 Pa. Commw. 412, 412 A.2d 1128 (1980). Section 402(e) of the Unemployment Compensation Law, 43 P. S. § 802(e) provides that an employee shall be ineligible for compensation for any week —
(e) In which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work. (Emphasis supplied.)
Section 7.173 of the Governor's Code of Conduct, 10 Pa. B. 1040 (1981), reproduced below, provides for the discharge of all Commonwealth employees who are charged and convicted of a felony regardless of whether the employee's criminal conduct was connected with his work:
As soon as practicable after an employe has been formally charged with criminal conduct related to his or her employment with the Commonwealth or which constitutes a felony, such employe shall be suspended without pay. If such charge results in a conviction in a court of law, such employe shall be terminated.
Although the executive may and properly does require that Commonwealth employees should obey the law off the job as well as on and may discharge them for failing to do so, a worker is not ineligible for unemployment compensation unless his discharge is for willful misconduct connected with his work. Adams v. Unemployment Compensation Board of Review, 40 Pa. Commw. 486, 397 A.2d 861 (1979); Gallagher, 36 Pa. Commw. 599, 388 A.2d 785 (1978).
The events which resulted in the claimant's arrest and conviction did not occur while the claimant was at work. Further, his unlawful conduct was not of a kind which would reflect badly on his fitness or ability to be a maintenance repairman, in contrast with the conduct of the claimants in Adams v. Unemployment Compensation Board of Review, 40 Pa. Commw. 486, 397 A.2d 861 (1979) (claims manager convicted of conspiracy and mail fraud); Perdue v. Unemployment Compensation Board of Review, 28 Pa. Commw. 641, 369 A.2d 1334 (1977) (construction inspector convicted of retail theft); Unemployment Compensation Board of Review v. Derk, 24 Pa. Commw. 54, 353 A.2d 915 (1976) (school bus driver convicted of a morals charge). Since the claimant's criminal conduct was not connected with his work and did not reflect adversely on his fitness to be a maintenance mechanic, the conclusion that he was discharged for willful misconduct was erroneous.
Order reversed.
ORDER
AND NOW, this 30th day of May, 1984, the order of the Unemployment Compensation Board of Review in the above-captioned matter is reversed.