IN THE COMMONWEALTH COURT OF PENNSYLVANIA
James Balough, Jr.,
:
Petitioner
: :
v.
: No. 1827 C.D. 2001
: SUBMITTED: November 2, 2001
Unemployment Compensation
:
Board of Review,
:
Respondent
:
BEFORE: HONORABLE JAMES GARDNER COLINS, Judge
HONORABLE BERNARD L. McGINLEY, Judge
HONORABLE EMIL E. NARICK, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY SENIOR JUDGE NARICK
FILED: January 18, 2002
James Balough, Jr. (Claimant) petitions for review of an order of the
Unemployment Compensation Board of Review (Board), affirming a referee's
determination that Claimant is ineligible for compensation pursuant to Section
402(e) of the Unemployment Compensation Law (Law).
We affirm.
Claimant was employed as a weather observer by Keystone Weather
Service (Employer) from October 1, 1999 until his last day of work on February 4, 2001. Before hiring Claimant, Employer inquired as to whether he had plans to
start his own weather business. Claimant indicated that, in the past, he had had
such plans but currently desired to work for someone else as an observer.
Employer hired Claimant as a weather observer.
Approximately five or six months after hiring Claimant, Employer
learned that Claimant and another employee were discussing starting their own
business which would compete with Employer. Employer advised Claimant that
he could remain employed until Claimant's business became listed as a qualified
vendor capable of soliciting bids and as long as he did nothing to harm Employer.
Subsequently Employer learned that Claimant's business had become
listed as a qualified vendor that could compete with Employer and that Claimant
planned to do so while he remained on Employer's payroll. Employer also
discovered Claimant told a co-worker that he could make some calls to friends at
the United States Department of Labor and the Federal Aviation Administration
that would cause Employer to lose a certain contract, thus allowing Claimant's
business to bid on it. Claimant also stated that he was willing to bid low enough
and lose money in order to get Employer off that contract. Consequently,
Employer discharged Claimant for operating a competing business while still
employed and for threatening damage to Employer's operations in the process.
Claimant was granted benefits at the local office of employment
security (OES) and Employer appealed. The referee reversed the OES and
Claimant appealed. The board affirmed the referee's reversal. On appeal to this
Court, Claimant argues that the Board erred in denying benefits based on willful
misconduct because the record does not support a determination that he
deliberately violated Employer's rules.
What constitutes willful misconduct is a question of law reviewable
by this Court.
Here, Claimant charges that Employer is contesting his right to
compensation on the basis of a work rule violation, and thus, it is Employer's
burden to prove the existence of a reasonable work rule and Claimant's violation of
it. County of Luzerne v. Unemployment Compensation Board of Review, 611
A.2d 1335 (Pa. Cmwlth. 1992). If the employer meets its initial burden, the burden
then shifts to the claimant to prove good cause or that the rule was not reasonable.
Id.
However, contrary to Claimant's assertion, our review reveals that
Employer discharged Claimant not for violation of a specific written work rule, but
for operating a competing business while remaining employed and for threatening
harm to Employer's business in the process. Board Finding of Fact No. 11. If
supported by substantial record evidence, the Board's findings of fact are
conclusive on appeal. Taylor v. Unemployment Compensation Board of Review,
474 Pa. 351, 378 A.2d 829 (1977). This Court has addressed the issue of an
employee starting his own business that was the same as that of his employer. In
Jordan v. Unemployment Compensation Board of Review, 547 A.2d 811 (Pa.
Cmwlth. 1988), we held that such activity is willful misconduct under the Law.
The Board found that Claimant was on the qualified vendors list and,
not only could compete with Employer, but had plans to do so. Board Findings of
Fact Nos. 7 and 8. While Claimant now attempts to argue that he could not have
competed with Employer because Employer did not bid on the part-time contracts
Claimant bid on, Claimant cites no record support for that assertion. Our review of
the record has also not found any support for it; therefore, we may not consider this
claim. Dollar Bank v. Swartz, 540 Pa. 369, 657 A.2d 1242 (1995) (record below
did not contain the facts necessary to evaluate an argument made for the first time
on appeal with the result that the argument may not be addressed by this Court).
The facts established by the Board demonstrate that Claimant's
actions were in willful disregard of Employer's interests and were also below the
standard of behavior Employer had a right to expect from Claimant, its employee.
Frumento v. Unemployment Compensation Board of Review, 466 Pa. 81, 351
A.2d 631 (1976). The Board properly denied benefits under Section 402(e) of the
Law.
Accordingly, we affirm.
EMIL E. NARICK, Senior Judge