384 Mass. 807

October 30, 1981

We reverse the judgment of the District Court affirming the decision of the board of review of the Division of Employment Security ordering the payment of unemployment benefits to the claimant, Francis A. Thone.

It is clear that the board of review made findings contrary to those of the review examiner, who had denied benefits to the claimant, finding that he was discharged solely for deliberate misconduct in wilful disregard of the employing unit's interest within the meaning of G. L. c. 151A, Section 25 (e) (2). Where the board of review does not conduct an evidentiary hearing (as is the case here), its inquiry is limited on questions of fact solely to the issue whether the review examiner's findings are supported by substantial evidence. See Director of the Div. of Employment Security v. Fingerman, 378 Mass. 461, 463 (1979). See G. L. c. 151A, Section 41 (b). The board of review improperly made independent findings of fact.

There is a further problem in that both the review examiner and the board of review made their decisions on the mistaken assumption that the claimant had violated company policy by applying accrued dividends of policyholders to accounts in arrears. The evidence showed, and the claimant agreed, that he had violated company policy with respect to policyholders' accounts not in arrears. This misunderstanding casts particular doubt on the reasoning of the decision of the board of review.

The judgment is reversed and the case is to be remanded to the Division of Employment Security for further consideration in light of this opinion.

So ordered.


[Note 1] Francis A. Thone.

Home COMMONWEALTH vs. ANTHONY CIMINERA (and two companion cases [Note 1].

384 Mass. 807

November 3, 1981

We allowed the defendants' petitions for further appellate review. The defendants claimed that in considering whether extraneous prejudicial information reached the jury, the trial judge and the Appeals Court incorrectly interpreted Commonwealth v. Fidler, 377 Mass. 192 (1979). The defendants also claimed error in the denial of their motions for a new trial.

We have reviewed the entire record. We are in substantial agreement with the reasoning of the Appeals Court. See Commonwealth v.

Page 808

Ciminera, 11 Mass. App. Ct. 101 (1981). We find no reversible error, and we affirm.

Denial of motions for a new trial affirmed.

Judgments of the Superior Court affirmed.


[Note 1] Commonwealth vs. David Jarjura and Commonwealth vs. George Navikauskis.