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UNEMPLOYMENT COMPENSATION BOARD REVIEW COMMONWEALTH PENNSYLVANIA v. ELIZABETH KELLER (03/08/76)

decided: March 8, 1976.

UNEMPLOYMENT COMPENSATION BOARD OF REVIEW OF THE COMMONWEALTH OF PENNSYLVANIA
v.
ELIZABETH KELLER, APPELLANT



Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Elizabeth Keller, No. B-125300.

COUNSEL

Eugene F. Zenobi, with him Alan N. Linder, for appellant.

Daniel R. Schuckers, Assistant Attorney General, with him Sydney Reuben, Assistant Attorney General, and Robert P. Kane, Attorney General, for appellee.

Judges Kramer, Wilkinson, Jr. and Mencer, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 23 Pa. Commw. Page 604]

An oversight on the part of Community General Hospital in Reading has resulted in the discharge of its employee, Elizabeth Keller (claimant), and the denial to her of unemployment compensation benefits by all of the compensation authorities.

The ruling of ineligibility made by the Unemployment Compensation Board of Review (Board) was premised on its conclusion that claimant was properly discharged because of willful misconduct connected with her work. We reverse this determination, but we note the limited nature of our holding resulting from the unusual circumstances of this case.

Until 1974, claimant had been employed by St. Joseph's Hospital in Reading in a housekeeping capacity. The job of supervisor of housekeeping became available at Community General Hospital, and claimant made application for the more lucrative position. On claimant's employment application was the following question: "Do you object to a pre-employment physical examination?" Claimant answered that question affirmatively. Despite this answer, Community General hired claimant to fill the housekeeping supervisor position. Claimant's work was considered highly satisfactory. However, some months after her employment, the hospital administrative authorities realized their mistake in hiring claimant without first requiring her to undergo the pre-employment physical examination and demanded that claimant submit to such an examination.*fn1 Claimant refused to submit to

[ 23 Pa. Commw. Page 605]

    the pre-employment physical examination and was discharged. Thereafter, she was denied benefits because of her alleged willful misconduct.

The concept of willful misconduct has been discussed by Judge Kramer in O'Keefe v. Unemployment Compensation Board of Review, 18 Pa. Commonwealth Ct. 151, 333 A.2d 815 (1975), wherein he stated:

"The Board denied benefits on the basis of 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. ยง 802(e), which provides, in relevant part, that an employe shall be ineligible for compensation for any week:

'(e) in which his unemployment is due to his discharge or temporary suspension from work for willful misconduct ...


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