DocketNumber: Appeal, No. 1002 C.D. 1977
Judges: Disalle, MacPhail, Mencer
Filed Date: 12/11/1978
Status: Precedential
Modified Date: 10/18/2024
Opinion by
This is an appeal from an order of the Unemployment Compensation Board of Review (Board), reversing the decision of the referee, and denying unemployment compensation benefits to Paulette Paige (Claimant).
Our scope of review here is limited to questions of law and, in the absence of fraud, to a determination of whether the Board’s finding of willful misconduct was based upon substantial evidence. Holtzman v. Unemployment Compensation Board of Review, 29 Pa. Commonwealth Ct. 525, 372 A.2d 31 (1977); Barnett v. Unemployment Compensation Board of Review, 29 Pa. Commonwealth Ct. 581, 372 A.2d 48 (1977).
In the instant appeal the record discloses substantial evidence to support the findings of fact. The issue then is whether those findings will support the Board’s legal conclusions. It is well settled that an error of law is reviewable by this Court and as emphasized in Roebuck v. Unemployment Compensation Board of Review, 33 Pa. Commonwealth Ct. 491, 382
In the instant case the Board’s findings of fact were as follows:
1. Claimant was last employed as a Fitter and Adjustor by the Olivetti Corporation of America for two years at a final rate of $4.44 per hour and her last day of work was June 10,1976.
2. On June 9, 1976, the claimant and another employe engaged in a physical altercation in the washroom of the employer’s establishment.
3. During the fight, which occurred after the end of the claimant’s shift, both employes exchanged blows with each other.
4. On June 10, 1976, the claimant was discharged for fighting on company premises.
On these findings, the Board concluded that the Claimant was ineligible for benefits because her actions constituted willful misconduct as- defined in Section 402(e) of the Act.
It is well settled that the burden of proving willful misconduct is on the employer. Kentucky Fried Chicken of Altoona, Inc. v. Unemployment Compensation Board of Review, 10 Pa. Commonwealth Ct. 90, 309 A.2d 165 (1973). In the instant appeal, the testimony before the referee was presented by the Claimant and the employer’s representative. The employer’s representative . did .not witness the altercation. His testimony was based upon an investigation he made immediately after the incident by questioning the Claim
Here, the Board’s findings establish only that the fight occurred in the washroom after working hours and that both employees exchanged blows. The Board concluded from those facts alone, and without consideration of the issue of justification, that the Claimant was guilty of willful misconduct. As we have also previously noted, the Claimant’s unrebutted testimony, if believed, is that she was not the aggressor and that she could not in any way avoid the aggressor. We conclude that the present findings of fact in this case do not demonstrate “willful disregard of the employer’s intent or rules or the standard of conduct the employer has a right to expect.” Frumento, supra, at 87, 351 A.2d at 634.
Accordingly, we must also conclude that • the, Board’s present findings are insufficient as a matter of law to establish willful misconduct resulting in a denial of unemployment compensation benefits to the Claimant. Therefore, we will remand to the Board for the making of new and adequate findings of fact. See Curtis v. Unemployment Compensation Board of Re
Order
And Now, this 11th day of December, 1978, this case is remanded to the Unemployment Compensation Board of Review for the making of new and adequate findings of fact.