Edwin M. Mossa, Appellant-Appellant,

vs.

Ohio Credit Union League et al., Appellees-Appellees

No. 86AP-1141
COURT OF APPEALS OF OHIO, TENTH APPELLATE DISTRICT, FRANKLIN COUNTY
Slip Opinion
June 9, 1987, Decided

APPEAL from the Franklin County Common Pleas Court.

 COUNSEL

 

MESSRS. BIDWELL & BEACHLER and MS. JINX STATLER BEACHLER, for appellant.
MR. ANTHONY J. CELEBREZZE, JR., Attorney General, MR. LAWRENCE J. HACKETT, for appellee Ohio Bureau of Employment Services.
MESSRS. McNAMARA & McNAMARA, MR. WILLIAM H. WOODS, and MS. DENISE SMITH GOLONKA, for appellee Ohio Credit Union League.

 JUDGES

 

GEORGE, J., REILLY and BOWMAN, JJ., concur.
 AUTHOR: GEORGE

 OPINION

 

 

 
GEORGE, J.

 

Claimant-appellant, Edwin M. Mossa, appeals from the Franklin County Court of Common Pleas, which affirmed the decision of the Unemployment Compensation Board of Review ("board") denying appellant unemployment compensation benefits on the ground that his employment had been terminated for just cause.

 

The Ohio Credit Union League, appellee and employer herein, provides facilitators to its member credit unions to assist in short-term, long-term and strategic planning. As part of this, appellee mailed brochures to its members which described a forthcoming conference and also invited the members to contact the employer regarding the employer's ability to provide the facilitators. Included in the mailing was a solicitation by S. R. M. Leader Resource, Inc., a partnership for profit and a competitor of appellee. Appellant is the only general partner of S. R. M. Leader Resource, Inc. ("S. R. M.") Appellant was discharged by appellee for "including personal solicitations in company mailings," a violation of appellee's written disciplinary ban on vending, soliciting or collecting contributions for any purpose unless authorized by management.

 

Appellant filed an application for determination of benefit rights. The administrator of the Ohio Bureau of Employment Services issued an initial determination disallowing benefits and later affirmed that denial upon reconsideration. On appeal to the board, the denial of benefits was affirmed, and appellant was denied further administrative appeal. Appellant subsequently appealed to the common pleas court, which affirmed the decisions of the administrator and board.

 

Appellant raises three assignments of error which are interrelated and will be considered together:

 

"I. The Court of Common Pleas' decision was unlawful, unreasonable, or against the manifest weight of the evidence;

 

"II. The Court of Common Pleas' decision that the appellant was discharged with just cause is in error; andor

 

"III. The Court of Common Pleas' [sic ] erred in not applying a willfullness [sic ] standard."

 

In its decision, the court of common pleas correctly enunciated the standard that it, sitting as a reviewing court, was bound to follow in examining a decision of the board, specifically, that a decision of the board which was lawful, reasonable, and not against the manifest weight of the evidence must be affirmed. Angelkovski v. Buckeye Potato Chips Co. (1983), 11 Ohio App. 3d 159. In so deciding, the court was prohibited from substituting its judgment for the board's on questions of fact or from independently interpreting the evidence. Simon v. Lake Geauga Printing Co. (1982), 69 Ohio St. 2d 41; Euclid Manor Nursing Home v. Bd. of Review (1985), 28 Ohio App. 3d 17, Kilgore v. Board of Review (1965), 2 Ohio App. 2d 69. The board, as the trier of the facts, has the responsibility for resolving purely factual questions; thus, a court of common pleas may not reverse simply because it may interpret the evidence differently than did the board. Brown-Brockmeyer Co. v. Roach (1947), 148 Ohio St. 511, Kilgore v. Board of Review, supra.

 

The uncontroverted facts reveal that appellant is the general partner of the S. R. M. limited partnership. S. R. M. provides discussion leaders to credit unions to help with their long-and short-term planning, one of the identical functions performed by appellee. Additionally, appellant admits that brochures regarding S. R. M.'s availability to provide discussion leaders were mailed with appellee's invitation to member credit unions to participate in a seminar andor engage planning facilitators. However, appellant contends that he was unaware of the inclusion of S. R. M. solicitations in appellee's solicitations prior to their being mailed.

 

A review of the record indicates that there was ample evidence to support the findings of the administrator and the board. Appellant, as a thirteen-year employee of appellee, was at least constructively aware of its "Personnel Policy" which was distributed to each employee when hired. Specifically, he must have been aware of appellee's policy against solicitation. By permitting S. R. M.'s brochure to be sent with appellee's solicitation, both of which were promoting substantially similar services, appellant not only violated appellee's rule but acted in conflict with appellee's interest.

 

An appellate court, in reviewing a determination of a court of common pleas on manifest weight of the evidence on appeal from the board, is held to a different standard than the court of common pleas. The function of the court of common pleas, in determining whether the board's decision is against the manifest weight of the evidence, by necessity involves the exercise of sound discretion. Angelkovski, supra. Thus, upon further review, an appellate court may reverse an order of the court of common pleas upon a showing that the court abused its discretion. Id. at 161. As used here, "abuse of discretion" implies more than an error in judgment, "it implies a decision without a reasonable basis, one which is clearly wrong." Id. at 162.

 

No abuse of discretion has been shown by the reviewing court in its affirmance of the decision of the board finding the decision to be lawful, reasonable and not finding it to be against the manifest weight of the evidence. Although appellant argues that just cause did not exist to terminate his employment, it is evident that there existed reasonable grounds for finding that it did. As stated in Peyton v. Sun T.V. (1975), 44 Ohio App. 2d 10:

 

"* * * There is, of course, not a slide-rule definition of just cause. Essentially, each case must be considered upon its particular merits. Traditionally, just cause, in the statutory sense, is that which, to an ordinarily intelligent person, is a justifiable reason for doing or not doing a particular act. * * *" Id. at 12. Accord Irvine v. Un (1985), 19 Ohio, supra.

 

The record indicates that appellant's solicitations not only contravened a stated employer policy but constituted a conflict of interest. In light of these facts, the reviewing court did not abuse its discretion by finding that appellant's termination was for cause.

 

Appellee additionally urges that this appeal be found frivolous and that appellant be required to pay appellee's attorney fees and costs. App. R. 23. However, although we agree with appellee on the merits of the case, we cannot say that there was no reasonable cause for the appeal. R.C. 2505.35. Given the nature of the loss appellant will necessarily suffer from a denial of unemployment benefits and the lack of evidence of bad faith or unethical tactics in the bringing of this appeal, appellee's motion is hereby denied.

 

Accordingly, appellant's assignments of error are not well-taken and are overruled. The judgment of the court of common pleas is affirmed.

 

REILLY and BOWMAN, JJ., concur.

 

GEORGE, J., of the Ninth Appellate District, sitting by assignment in the Tenth Appellate District.

 DISPOSITION
 

Motion denied; judgment affirmed.