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ROBERT RIVERS v. COMMONWEALTH PENNSYLVANIA (07/10/78)

decided: July 10, 1978.

ROBERT RIVERS, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT; WESTINGHOUSE ELECTRIC CORPORATION, INTERVENING RESPONDENT



Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Robert Rivers, No. B-133527.

COUNSEL

Richard P. Perna, for appellant.

Judith E. Harris, with her Harris and Kahn, for intervening appellee.

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

Author: Mencer

[ 36 Pa. Commw. Page 471]

At 9:35 p.m. on the evening of April 15, 1975, Reuben Hall, private investigator, entered the Monte Carlo Club. He and his partner, Frank Ford, had been investigating Robert Rivers for 8 days, and it seemed as though the Monte Carlo Club held the key to unlocking their case. Using the alias, Joseph C. Hill, Reuben Hall was introduced to Robert Rivers by "Sis," an attractive barmaid.

Although the above scenario could be the start of a dime-store mystery, it actually represents a summary of a portion of the evidence in the record of this unemployment compensation appeal. Robert Rivers (claimant) appeals from an order of the Unemployment Compensation Board of Review (Board) denying him benefits. The Board's order reversing the

[ 36 Pa. Commw. Page 472]

    referee was based on a finding of willful misconduct under Section 402(e) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. ยง 802(e). Since a crucial finding of fact is not supported by the evidence, we reverse.

Prior to March 10, 1975, claimant had worked for Westinghouse Electric Corporation for almost 24 years. On March 11, he began a disability leave from his position as a fitter which, according to his testimony, involved "partly heavy" work.*fn1 Claimant completed and signed a form sent to him by Westinghouse on March 21, entitled "Statement of Claim -- Accident and Sickness Weekly Disability Benefits." This form contained the following statement:

I certify that in applying for accident and sickness insurance I am totally disabled and unable to work for either myself or any company and will return to work as soon as possible.

I further understand that falsification of information could result in termination or recovery of all money paid or termination of my employment.

The reverse side of the form was completed on March 25 by claimant's physician, Dr. Litten, who diagnosed claimant's illness as "flu-bronchitis; viral pneumonia" and estimated that he ...


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