Commonwealth Court of PennsylvaniaNov 30, 1982
70 Pa. Commw. 169 (Pa. Cmmw. Ct. 1982)
70 Pa. Commw. 169452 A.2d 912

November 30, 1982.

Unemployment compensation — Scope of appellate review — Error of law — Findings of fact — Substantial evidence — Credibility — Conflicting evidence — Insubordination — Refusal of order — Wilful misconduct — Intent.

1. In an unemployment compensation case review by the Commonwealth Court of Pennsylvania is to determine whether an error of law was committed and whether necessary findings of fact are supported by substantial evidence leaving to the Unemployment Compensation Board of Review questions of credibility and the resolution of conflicts in the evidence. [171]

2. An employe who refuses two requests by her supervisor to report to his office immediately when she returned from her extended lunch period is properly found to constitute wilful misconduct precluding her receipt of unemployment compensation benefits when she is discharged as a result of her conduct, and her claim that she had other rush work to do which she thought took precedence over the order although not over her lunch period does not constitute good cause for the refusal. [172]

3. A finding that an employe twice refused an order to report to her supervisor is not insufficient to support a determination of wilful misconduct in an unemployment compensation case merely because no separate finding was made to the effect that the conduct was intentional, as such a finding is implicit in a determination that the employe refused to report when requested to do so immediately. [172]

Submitted on briefs September 13, 1982, to Judges ROGERS, WILLIAMS, JR. and CRAIG, sitting as a panel of three.

Appeal, No. 773 C.D. 1981, from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Angela Izzo, No. B-193136.

Application with the Office of Employment Security for unemployment compensation benefits. Application denied. Applicant appealed to the Unemployment Compensation Board of Review. Denial affirmed. Applicant appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.

David M. Rosenberg, Robinson Geraldo, for petitioner.

Alan S. Readinger, First Assistant County Solicitor, for intervenor.

This is an appeal from a determination of the Unemployment Compensation Board of Review (Board) that the claimant, Angela Izzo, is ineligible for benefits under Section 402(e) of the Pennsylvania Unemployment Compensation Law (Act) because of her willful misconduct. We affirm.

Act of December 5, 1986, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P. S. § 802(e).

The Board found that Ms. Izzo was employed as a legal secretary in the Berks County solicitor's office from February, 1972, until August 4, 1980, when the event which precipitated her termination occurred. Upon her return from an extended lunch period, she was informed by another secretary in the office that her supervisor wanted to see her in his office promptly. Claimant refused to go, asserting that she had a "rush job" to do; a second notification by the coworker elicited the same response. The employer subsequently discharged Ms. Izzo for, inter alia, insubordination and poor job performance.

In applying the law to these facts, the Board determined that the request made by claimant's superior was not unreasonable, and that claimant's behavior constituted willful misconduct. On appeal to this Court, claimant argues that her conduct was justifiable and reasonable under the circumstances, that the Board failed to make a requisite finding that her actions were intentional, and that the findings are not based upon substantial evidence. This Court fails to find merit in any of the propounded theories for reversal.

See Kentucky Fried Chicken of Altoona, Inc. v. Unemployment Compensation Board of Review, 10 Pa. Commw. 90, 97, 309 A.2d 165, 168 (1973):

For behavior to constitute wilful misconduct, it must evidence (1) the wanton and wilful disregard of the employer's interest, (2) the deliberate violation of rules, (3) the disregard of standards of behavior which an employer can rightfully expect from his employe, or (4) negligence which manifests culpability, wrongful intent, evil design, or intentional and substantial disregard for the employer's interests or the employe's duties and obligations.

Our limited scope of review in unemployment compensation cases is restricted to an examination of the record to verify that no error of law has been committed and that all findings of fact are supported by substantial evidence. Schiazza v. Unemployment Compensation Board of Review, 54 Pa. Commw. 110, 420 A.2d 33 (1980). Findings so supported are binding on this Court, even if there is evidence to the contrary in the record. Martin v. Unemployment Compensation Board of Review, 36 Pa. Commw. 304, 387 A.2d 998 (1978). In this case testimony conflicted on many points, but the Board resolved that discrepancy in favor of the employer, and so noted in its opinion. Questions of credibility and resolution of contradictions are within the purview of the Board, and will not be set aside by this Court. Troyen v. Unemployment Compensation Board of Review, 34 Pa. Commw. 445, 383 A.2d 975 (1978).

We now turn to an examination of claimant's arguments in this appeal. Claimant's first assertion, that her actions were reasonable, is not persuasive to this Court. We cannot conclude that the claimant's subjective determination that her alleged "rush job" took precedence over her employer's request justifies her refusal to cooperate. In this regard we fully support the Board, which noted in its discussion that "the supervisor's order was reasonable, since a supervisor has a right to request employes to come to his office." The content of the "rush job" was not identified for the record and its urgency is vitiated by its relegation to a position of lesser importance in claimant's day than her personal business during her extended lunch. We reject claimant's contention that her conduct was reasonable under the circumstances.

See White v. Unemployment Compensation Board of Review, 69 Pa. Commw. 196, 450 A.2d 770 (1982), wherein the following applicable language appears:

It was a reasonable request, the employee's refusal was arbitrary, and this constituted ample evidence of a disregard of the standards of behavior an employer has the right to expect of his employees.

Pertinent to claimant's second argument, we note that the Board did not list in its findings of fact any specific determination that the actions complained of were intentional. What the Board did find, however, was that the deeds which resulted in claimant's termination were two refusals to report to the supervisor immediately. This Court perceives that there is inherent in the word "refuse" an element of intent which cannot be inferred in situations involving carelessness, forgetfulness, inaccuracy, or the like. Claimant argues that her willfulness should be analyzed in terms of her "understanding" that she could finish her rush job before she reported to her supervisor's office. This argument is negated by the Board's factual determination that her appearance there was required "immediately." The Board obviously did not accept as credible her testimony that she believed a delayed appearance at the supervisor's office would be acceptable.

See American Process Lettering, Inc. v. Unemployment Compensation Board of Review, 50 Pa. Commw. 272, 412 A.2d 1123 (1980) in which this Court noted that willful misconduct need not be based on a finding of intent to wrong the employer.

The applicable definition of the word "refuse," appearing in Webster's Third New International Dictionary 1910 (1966) is: "to show or express a positive unwillingness to do or comply with."

Claimant's third question to this Court is whether the findings of the Board are supported by substantial evidence. Our review of the record produces testimony which would support all contested findings. As previously noted, the record is replete with contradictory evidence, and the Board specified that it resolved several pertinent issues in favor of the employer.

Order affirmed.


AND NOW, this 30th day of November, 1982, the Decision and Order of the Unemployment Compensation Board of Review, dated March 11, 1981, docketed to No. B-193136, is hereby affirmed.