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HELEN A. KALINA v. COMMONWEALTH PENNSYLVANIA (01/13/78)

decided: January 13, 1978.

HELEN A. KALINA, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Helen A. Kalina, No. B-135854.

COUNSEL

Barbara J. Hart, with her Ellen L. Hyman, Louis M. Shucker, Herbert Karasin, and Alan N. Linder, for appellant.

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

Judges Wilkinson, Jr., Rogers and DiSalle, sitting as a panel of three. Opinion by Judge Wilkinson, Jr.

Author: Wilkinson

[ 33 Pa. Commw. Page 300]

Petitioner appeals the affirmance by the Unemployment Compensation Board of Review (Board) of a referee's denial of benefits on the ground of willful misconduct, pursuant to 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). We affirm.

Petitioner was employed for about two years as a waitress in a Y.M.C.A. in which food was served in both a coffee shop and a lounge area, located in a separate room. On January 13, 1976, petitioner brought her own home-made bread into the coffee

[ 33 Pa. Commw. Page 301]

    shop to serve free to customers and was told by her immediate supervisor there not to do so. On January 15, 1976, she again brought in her own homemade bread, this time for a few patron-friends attending a private luncheon in the lounge area who had asked her when she would bring some in. She was discharged the next day for her conduct.

Petitioner's claim for benefits was denied by the Bureau of Employment Security (Bureau). At a hearing at which the employer did not appear, and at which petitioner was unrepresented by counsel, the referee read into the record a statement by the supervisor (superior to petitioner's immediate supervisor in the coffee shop) who had discharged petitioner. The statement, recorded on a Bureau "Summary of Interview" form, stated that petitioner had been warned that her conduct was a violation of state food laws. Petitioner was asked if she had any objection to the entry of that statement into the record and made none. Petitioner admitted her conduct and the fact that she had been warned not to bring bread into the coffee shop, but explained that the lounge area "has nothing to do with the coffee shop." The referee found that petitioner had deliberately violated both the employer's rules and state law and denied benefits. The Board's affirmance and this appeal followed.

Petitioner contends that the Board lacked substantial evidence to support a finding of willful misconduct because she was allegedly unaware that the employer's prohibition on bringing food from home applied to food to be served in the lounge area as well as in the coffee shop. Claimant admitted, however, that she knew that food to be served in the lounge, as well as the coffee shop, was prepared in the coffee shop. Further, she testified that her immediate supervisor (who claimant testified was in charge of food

[ 33 Pa. Commw. Page 302]

    preparation for both rooms) told her, "'Helen, I don't want you to bring any more bread in.'" This statement, admissible though hearsay (see Costa v. Unemployment Compensation Board of Review, 31 Pa. Commonwealth Ct. 7, 374 A.2d 1012 (1977)), made no apparent distinction that the rule was to apply only to food to be ...


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