527 A.2d 615

#### Bruce E. Shearer, Petitioner *v.*Commonwealth of Pennsylvania, Unemployment Compensation Board of Review, Respondent.

*620Submitted on briefs November 20, 1986,

to Judges Barry and Palladino (P), and Senior Judge Barbieri, sitting as a panel of three.

*John W. Purcell, Jr., Purcell, Nissley, Krug*& *Haller,*for'petitioner.

*Jonathan Zorach',*Associate Counsel, with him, *Clifford F. Blaze,*Deputy Chief Counsel, for respondent.

June 16, 1987:

Opinion by

Judge Barry,

1 Bruce E. Shearer, claimant, appeals from an order of the Unemployment Cómperisation Board of Review (Board) affirming the referees denial of benefits under Section 402(e) of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, *as amended,*43 P.S. §802(e).

Claimant was employed by Co'msen, employér, as á computer programmer for approximately ten months. On his discharge, he applied, for unemployment compensation benefits at the Office of Employment Security (ÓES). The OES determined that claimant was ineligible for benefits because he violated his employment contract with employer. Claimant appealed this determination to the referee who affirmed the decision of the *621OES but on different grounds. The referees determination was based on his finding that claimant was guilty of willful misconduct due to his poor work performance. On appeal, claimant argues that the referee was precluded'from addressing the issue of poor work performance because the OES did not rule on that issue. The claimant further maintains that, even if the referees actions were proper, his determination that claimant was guilty of poor work performance is not supported by substantial evidence. Claimant urges that, because it was demonstrated at the referees hearing that the OES determination was incorrect and that the OES failed to rule on any other grounds, this matter should be reversed.

The employer bears the burden, in an unemployment compensation case, of proving that its former employee was guilty of willful misconduct. *Wysocki v. Unemployment Compensation Board of Review,*87 Pa. Commonwealth Ct. 260, 487 A.2d 71 (1985).

Our scope of review is limited to a determination of whether constitutional rights were violated, an error of law was committed, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C. S. §704; *Estate of McGovern v. State Employees’ Retirement Board,*512 Pa. 377, 517 A.2d 523 (1986).

The first issue- before us is whether the referee and Board were precluded from addressing the issue of whether claimants poor work performance constituted willful misconduct when the OES denied benefits solely on a finding that claimant violated the employment contract by working for a competitor.

In *Hanover Concrete Company v. Unemployment Compensation Board of Review,*43 Pa. Commonwealth Ct. 463, 402 A.2d 720 (1979), we held that “the Board may only consider the nature of the alleged willful mis*622conduct as delineated in the Bureau's determination notice.” 43 Pa. Commonwealth Ct. at 465, 402 A.2d at 721. We have held likewise in similar cases. *Corressel v. Unemployment Compensation Board of Review,*35 Pa. Commonwealth Ct. 437, 385 A.2d 615 (1978) (the OES based its determination of her ineligibility on a “voluntary quit” claim while the Board based its affirmation of the OES on an “able-and-available” issue); *Lecker v. Unemployment Compensation Board of Review,*71 Pa. Commonwealth Ct. 266, 455 A.2d 234 (1983) (the OES based its determination on its finding that the claimant failed to follow employer instructions regarding assigned work while the Board made its findings on the basis that claimant was guilty of willful misconduct for leaving work early); *Diaz v. Unemployment Compensation Board of Review,*95 Pa. Commonwealth Ct. 137, 504 A.2d 973 (1986) (OES notified claimant that he was ineligible for benefits due to his willful misconduct when he negligently used the employers equipment while the Board found claimant guilty of willful misconduct for his failure to give the employer an accurate account of the circumstances surrounding the damage to the taxicab); *Bilsing v. Unemployment Compensation Board of Review,*34 Pa. Commonwealth Ct. 199, 382 A.2d 1279 (1978) (OES determined that claimant was ineligible for compensation because of his absenteeism and lateness while the Board determined that claimant was ineligible because of his violation of employers safety rules by leaving unattended clothes in a dryer). In all of these cases, our policy considerations have been the same—to permit a proceeding to stand in which one party was not notified of a charge upon which evidence would be produced and a ruling issued is fundamentally unfair and prohibited. Normally, the referees and Boards ruling on this case with respect to poor work performance would be considered fundamen*623tally unfair since the OES notice of determination listed only the claimants violation of the employment contract by working for a competitor as the basis for a finding of willful misconduct. However, there are distinguishing factors about this case which cause us to decide it differently.-

The record before us shows that there is no question that the OES and the Board ruled on different grounds. However, the record further reveals that, during the proceedings, the employers counsel, bearing the burden of proving willful misconduct, proceeded to present evidence to show that claimant was fired due to poor work habits. Upon claimants counsels objection, the referee recognized the development of a potential violation of the cases outlawing such a practice. He, therefore, restricted employers counsel to present evidence only with respect to claimants alleged violation of the employment contract provision which forbade working for a competitor. The referee further noted the employers exceptions. Later in the proceedings, claimants counsel, while attempting to prove the claimant was fired for reasons other than a contract violation, entered into the area of work performance. At that point, the referee intervened and presented the claimant with two alternatives. The first alternative was to agree that the referee would remand to the OES to permit the OES to correct what the referee perceived to be an error in its notice of determination or, secondly, to open the proceeding up to permit evidence, of claimants work performance. This latter alternative, in effect, would entail a waiver of any objection to the notice of determination. Claimants counsel, stating that it was pointless to delay, agreed to . permit the introduction of evidence of claimants work performance. The employers counsel proceeded to present the employers witness who testified to problems with claimants work performance. *624Claimants counsel then proceeded to cross-examine that witness. The question then becomes whether claimant waived his right to challenge the discrepancy in the rulings of the referee and OES by agreeing to proceed further in the referees proceeding rather than agree to a remand. In order to determine that issue we must first look to see whether the referee and the Board are foreclosed from ever deciding an issue which was not presented to it by the OES. In *Chiaro v. Unemployment Compensation Board of Review,*27 Pa. Commonwealth Ct. 459, 366 A.2d 959 (1976), a case cited by *Corressel,*we remanded the matter back to the Board to afford the claimant an opportunity to present evidence relative to the issue which they were unprepared to defend. Similarly, we remanded in *Bilsing, Corressel, Diaz*and *Lecker.*Our holdings in these cases require that the matter be remanded so that the unprepared claimant will be able to defend against all charges. Thus, because the OES, in this case, did not rule on claimants work performance, an issue which the employer presented before the OES in its Employer Separation form, neither the referee nor the Board was forever precluded from doing so but only required to proceed with proper attention to due process and fairness. Here, we need not remand since the referee recognized the apparent violation of case law and provided the claimant with an opportunity to delay the proceedings. The claimant declined. He cannot now claim that he was unfairly surprised. This is consistent with 34 Pa. Code §101.87.

Having determined that the referee and Board properly ruled on the issue of claimants work performance, we look to the Boards findings to determine whether these findings are supported by substantial evidence. The record contains the testimony of employers witness, Renee Herr, employers account manager, who *625testified that, although claimant, early in his employment, had exhibited proficient work skills and habits his work product had slipped drastically, his attitude had deteriorated and he made several serious mistakes with respect to customer transactions.1 This evidence is sufficient to support the findings by the Board.

We, therefore, affirm.

Order

Now, June 16, 1987, the order of the Unemployment Compensation Board of Review, dated June 7, 1985, at No. B-240871, is affirmed.

1

 Ms. Herr testified that claimant provided an important customer with a “bad program” and then failed to promptly return that customers complaint call after being directed to do so. In addition, claimant had begun reporting to work late even after being reprimanded and failed, on at least one occasion, to properly perform his filing responsibilities despite having exhibited the knowledge to aptly do the filing.