DiGiovanni v. Com., Unemployment Compensation Bd. of Review
| Decision Date | 07 August 1979 |
| Citation | 44 Pa.Cmwlth. 605,404 A.2d 449 |
| Parties | Louis DiGiovanni, Petitioner, v. COMMONWEALTH of Pennsylvania, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, Respondent. |
| Court | Pennsylvania Commonwealth Court |
James M. Penny, Jr., Louis F. Hinman, III, Penny, Hinman & Bevilacqua, Philadelphia, for petitioner.
Charles G. Hasson, Unemployment Compensation Bd. of Review, Harrisburg, for respondent.
Before MENCER, ROGERS and CRAIG, JJ.
Louis DiGiovanni (claimant) has appealed an order of the Unemployment Compensation Board of Review (Board) denying him benefits because of willful misconduct pursuant to 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). We affirm.
Claimant was employed intermittently by Michelfelder's Sausage Shops (Michelfelder's) as the supervisor of its import department for approximately two years prior to his discharge. On September 30, 1977, claimant was instructed by his supervisor, Mr. Burke, to accompany a truck driver to a meat plant Michelfelder's was purchasing to pick up a shelf for use in the claimant's department. Claimant refused the assignment on the basis that the meat plant was infested with insects and that on claimant's last visit to the plant a "bug" had "jumped" on him. Mr. Burke repeated his request, telling claimant he had a choice, either to perform the task or to leave. Claimant chose to leave.
A referee denied benefits on the basis of Section 402(b)(1) of the Act (voluntarily leaving work without cause of a compelling and necessitous nature), after a hearing at which the employer failed to appear. The Board affirmed the referee but predicated its decision on a finding of willful misconduct. 1 This appeal followed.
Claimant argues that, since the employer has the burden of proving willful misconduct, the Board may not deny a claimant benefits if an employer fails to appear before either the referee or the Board and present evidence of willful misconduct. We disagree.
We have found numerous decisions where benefits were denied although the employer or one of his necessary witnesses has failed to appear at a Section 402(e) hearing. See, e. g., Belton v. Unemployment Compensation Board of Review, --- Pa.Cmwlth. ---, 402 A.2d 571 (1979); Bracy v. Unemployment Compensation Board of Review, 34 Pa.Cmwlth. 173, 382 A.2d 1295 (1978); Turner v. Unemployment Compensation Board of Review, 33 Pa.Cmwlth. 195, 381 A.2d 223 (1978); Costa v. Unemployment Compensation Board of Review, 31 Pa.Cmwlth. 7, 374 A.2d 1012 (1977); Pilchesky v. Unemployment Compensation Board of Review, 29 Pa.Cmwlth. 200, 370 A.2d 763 (1977); Philadelphia Coca-Cola Bottling Co. v. Unemployment Compensation Board of Review, 12 Pa.Cmwlth. 557, 317 A.2d 50 (1974); See also McLean v. Unemployment Compensation Board of Review, 26 Pa.Cmwlth. 270, 363 A.2d 848 (1976), Rev'd on other grounds, 476 Pa. 617, 383 A.2d 533 (1978). None of these decisions resulted in an automatic reversal of a Board decision for the employer or the granting of benefits to the employee simply because the employer failed to appear at the hearing or present any competent evidence of willful misconduct. On the contrary, the employer's burden was carried by the claimant's own testimony, either in whole, Turner, supra, or in part, by corroborating unobjected-to hearsay evidence of the employer. Bracy, supra. This result flows, we feel, from the long-recognized duty of the Board to protect the unemployment compensation fund from improper claims, Lybarger Unemployment Compensation Case, 203 Pa.Super. 336, 201 A.2d 310 (1964), Aff'd, 418 Pa. 471, 211 A.2d 463 (1965), and its corollary that the Board has the power and duty to investigate All The facts of a given case. Unemployment Compensation Board of Review v. Stiles, 19 Pa.Cmwlth. 38, 340 A.2d 594 (1975). See also Section 506 of the Act, 43 P.S. § 826, outlining the Board's investigative power. Therefore, if a claimant's own testimony establishes with sufficient certainty the crucial facts of a case, we see nothing improper in the Board's relying on that testimony when making its findings of fact.
Here, claimant unequivocally testified that he was given a work assignment and that he refused to perform it. We cannot imagine what more the employer could add or would want to add to show willful misconduct, for it is established that the refusal by an employee of a reasonable work assignment constitutes a disregard of the standards of behavior an employer has a right to expect of an employee. Brennan v. Unemployment Compensation Board of Review, 17 Pa.Cmwlth. 569, 333 A.2d 794 (1975); Pellegrino v. Unemployment Compensation Board of Review, 8 Pa.Cmwlth. 486, 303 A.2d 875 (1973).
Claimant argues, however, that even if his testimony is used to carry the employer's burden, a finding of willful misconduct is unwarranted as he was justified in refusing...
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