94 Pa. Commw. 579 | Pa. Commw. Ct. | 1986
Opinion by
Petitioner, Bowen-McLaughlin-York Company (BMY), seeks review of an order of the Unemployment Compensation Board of Review awarding bene
BMY is a division of Harsco Corporation engaged in defense contracting work, including both general and directed research and development (R & D).
The factual matrix is convoluted from which we have distilled the following. Claimant, a native of Poland, with resident alien status in the United States, was hired by BMY in the fall of 1981 directly out of a teaching post at Spring Garden College. In the summer of 1982, he developed the device and turned it over to his employer. There is some controversy as to whether claimant was part of a team assigned to work on the U.S.-Israeli project and what his designated role was. BMY then asked claimant to sign a contract turning ownership over to BMY of all inventions de
In February of 1983, claimant did sign the employment contract, allegedly under threats of termination and deportation and allegedly in the subjective belief that the contract would have prospective effect only. He also attached a copy of his alternate agreement, which BMY never signed o-r honored in any fashion. Within a week or two BMY took steps to patent the device as its own, prompting claimant to patent the device himself and pursue through retained counsel a course of negotiation with BMY regarding the rights to the device. This led to his sudden termination in March of 1983.
The Board found that BMY failed to meet its burden as employer of showing willful misconduct. See
BMY contends first that the decision below is in error because the Board capriciously disregarded competent evidence in finding that BMY failed to meet its burden of proof. We disagree.
BMY’s witness at the hearing was a Mr. Snodgrass, a vice-president in its employee relations administration department. He was the only witness to testify as to BMY’s allegations that claimant was insubordinate ; had refused to sign an employee agreement as was required of him; had stolen trade secrets of the employer; had threatened to interfere with a contract between BMY and the Army regarding the device; and had filed a patent as to the device without knowledge of BMY.
The terms and conditions of employment, as well as the legal ownership of the invention, were and are matters of considerable dispute between the parties. In this case, claimant testified that he was assigned to a directed It & D department to make metallurgical calculations for project engineers and was never required to sign a contract regarding ownership rights as invention was not a part of his duties. He further testified that he invented the device on his own and believed it to be his, and that in giving it to the company to use, he expected either compensation or a share in the profits.
The record demonstrates that Snodgrass had no first-hand knowledge of any of the relevant events con
Where the alleged willful misconduct is the violation of a work rule the burden is on the employer to prove both the rule and the fact of its violation. Sonat Marine, Inc. v. Unemployment Compensation Board of Review, 92 Pa. Commonwealth Ct. 404, 499 A.2d 718, 721 (1985). The Board, as ultimate factfinder, determines the weight and credibility of the evidence presented to it and is free to reject even uncontradioted testimony. Swope v. Unemployment Compensation Board of Review, 91 Pa. Commonwealth Ct. 459, 497 A.2d 289 (1985). Questions of credibility and resolution of conflicts are for the Board, not this Court. Saxton v. Unemployment Compensation Board of Review, 71 Pa. Commonwealth Ct. 636, 455 A.2d 765 (1983).
Here, the Board found claimant credible in nearly every respect and resolved conflicts of testimony in his favor. On review, we cannot say the Board in its role as factfinder capriciously disregarded competent evidence. Snodgrass was not competent to testify as to material issues in the proceeding. The claimant and his witness, an attorney who had represented him dur
BMY, rather than bringing additional witnesses to the referee’s hearing, chose to submit the transcript from the federal hearing. Although the transcript was admitted over objections from counsel for the claimant, the mere admission into evidence of the transcript does not bind the referee to believe the transcript or to make the same determinations as did the Federal Judge. Credibility is exclusively within the province of the referee and the Board as factfinder. Swope; Saxton. Moreover, the Board was free to make adverse inferences from the fact that the witnesses who testified at the injunction hearing did not testify at the unemployment compensation hearing, and such inferences can be used to weigh the credibility of evidence offered by the party having the burden of proving willful misconduct. Vann v. Unemployment Compensation Board of Review, 508 Pa. 139, 145, 494 A.2d 1081, 1084 (1985); Harring v. Unemployment Compensation Board of Review, 70 Pa. Commonwealth Ct. 173, 452 A.2d 914 (1982); Caloric Corp. v. Unemployment Compensation Board of Review, 70 Pa. Commonwealth Ct. 182, 452 A.2d 907 (1982). Consequently, we cannot find a capricious disregard of competent evidence on the record before us.
BMY next argues that the refusal to sign the ownership agreement and the actions of claimant in patenting the device and retaining counsel were willful misconduct as a matter of law and that the Board erred in this regard. We disagree with .this approach. The issue of what specific behavior constitutes willful misconduct, while ultimately a matter of law, must depend in large part on the factual determinations of the Board as factfinder. No authority is cited to us establishing that retaining counsel and patenting an invention while in the employ of a defense contractor is
BMY’s next contention is that the Board erred in determining that claimant had good cause for his acts. The burden of showing good cause is on the claimant, Elliott v. Unemployment Compensation Board of Review, 82 Pa. Commonwealth Ct. 107, 474 A.2d 735 (1984), and the scope of review where the claimant meets that burden is whether the record, taken as a whole, contains substantial evidence to support the Board’s conclusion, or whether errors of law were committed. Swope v. Unemployment Compensation Board of Review, 91 Pa. Commonwealth Ct. 459, 497 A.2d 289 (1985). See Frumento v. Unemployment Compensation Board of Review, 466 Pa. 81, 351 A.2d 631 (1976).
We feel that the Board’s finding of good cause was supported by 'substantial evidence. BMY’s argument is that because the Middle District of Pennsylvania issued an injunction in May of 1983, subsequent to claimant’s termination in March of 1983, barring him from using the device, and in November of 1984 resolved the ownership dispute in BMY’s favor,
Second, the finding of the Federal Court cannot be held to have any res judicata or collateral estoppel effect in a separate proceeding involving identical parties where the actions, relief sought, and issues of law are so clearly different. The doctrine of res judicata applies only when there is a concurrence of (1) identity of the thing sued upon; (2) identity of the cause of action; (3) identity of the persons and parties to the action; and (4) identity of the quality or capacity of the parties suing or sued. Lerner v. Philadelphia Psychiatric Center, 56 Pa. Commonwealth Ct. 421, 425 A.2d 470, 471 (1981). Likewise, a plea of collateral estoppel may only be entertained if: (1) the issue decided in the prior adjudication was identical with the one presented in the later actions; (2) there was a final judgment on the merits; (3) the party against whom the plea is asserted was a party or in privity with the party to the prior adjudication; and (4) the party against whom it is asserted has had a full and fair opportunity to litigate the issue in question in a prior action. Baker v. Pennsylvania Human Relations Commission, 75 Pa. Commonwealth Ct. 296, 308, 462 A.2d 881, 887 (1983), modified on other grounds, 507 Pa. 325, 489 A.2d 1354 (1985). In Baker, it was held that
Third, because tbe required burden of proof in tbe two proceedings was different, evidence disregarded by tbe Federal Judge in tbe contract proceeding could be relied upon by tbe Board in tbe compensation bearing. In issuing its orders, tbe Federal Court relied almost exclusively upon tbe written contract signed by
For the above reasons, the Board’s decision will be affirmed.
Order,
And Now, this 3rd day of February, 1986, the decision of the Unemployment Compensation Board of Review, Decision No. B-235175, dated October 19, 1984, is hereby affirmed.
Act of December 5, 1936, Second Ex. Sess., P.D. (1937) 2897, as amended, 43 P.S. §802(e).
General R & D, called “design and development,” involves the development of new approaches to a specific or general design problem. Directed R & D, called “support,” involves problems of construction and manufacture of a given design or set of specifications.
The termination allegedly was communicated to counsel for claimant who had arrived at BMY for what was supposed to be a negotiation session. Counsel for claimant had allegedly threatened to tell the U. S. Army that the patent for the device was in dispute. Counsel also learned of the existence of a temporary restraining order against claimant at the same time, see notes 4 and 5,
Harsco Corp. v. Zlotnicki, Civil Action No. 83-0384 (M.D. Pa., injunction hearing held April 22, 1983) (Harrisburg, Pennsylvania).
Harsco Corp. v. Zlotnicki, Civil Action No. 83-0384 (M.D. Pa., injunction order filed May 4, 1983) (R. Dixon Herman, J.); (M.D. Pa., memorandum opinion filed November 27, 1984) (William W. Caldwell, J.) (granting summary judgment to BMY in declaratory judgment action).
See note 5. We were told by counsel for respondent in his brief and at oral argument that this decision had been appealed to the Third Circuit, but no citation to a docket number or entry of appeal was noted as is required by Pennsylvania Rule of Appellate Procedure 2153. In fact, the Third Circuit has recently affirmed the decision of the Middle District Court. Harsco Corp. v. Zlotnicki, No. 85-5149, slip op. (3d Cir. December 17, 1985). In affirming the decision of the trial court, the Third Circuit panel relied exclusively on the written terms of the contract and upon claimant’s failure to meet the strict requirements of a duress defense. Consequently, this decision has no preclusive effect on the Board’s factfinding for the same reasons set forth in the text. We note also that claimant has a wrongful discharge suit pending against petitioner, docketed at No. 84-0405 (M.D. Pa.).
One crucial point stressed in the Third Circuit’s opinion is that BMY proceeded on two theories, one a common-law right, the other a contractual right. The Middle District denied a motion for summary judgment based on the common law right to the device. Thus, claimant was probably justified in assuming that he had colorable title under at least common law principles, so long as the contract could be set aside somehow.
To be affirmed on review, the Board need only have relied on substantial evidence and this is a lesser standard than the preponderance and clear and convincing standards. See Dempsey v. Unemployment Compensation Board of Review, 92 Pa. Commonwealth Ct. 524, 526, 499 A.2d 740, 741 n.2 (1985). Substantial evidence is correctly defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Peak v. Unemployment Compensation Board of Review, 509 Pa. 267, 501 A.2d 1383 (1985).
The employer allegedly threatened not only to terminate him, but also allegedly threatened to jeopardize his status as a resident alien.
Likewise, the determination of guilt or innocence in a criminal proceeding may not be dispositive of the issue of just cause for termination in a civil proceeding. See Commonwealth v. Joint Bargaining Committee of Pennsylvania Social Services Union, 82 Pa. Commonwealth Ct. 200, 475 A.2d 1333 (1984).
The fact that claimant was terminated so soon after he signed the agreement was certainly relied upon by the Board in adjudging the credibility of the claimant and resolving conflicts in the testimony. Such an action is substantial evidence, one inference from which is that the termination was not the result of claimant’s misconduct but the culmination of a premeditated course of action engaged in by BMY to gain all rights to the device and drive claimant from his livelihood.