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VANCE C. GALLAGHER v. COMMONWEALTH PENNSYLVANIA (07/20/78)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: July 20, 1978.

VANCE C. GALLAGHER, 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 Vance C. Gallagher, No. 136067.

COUNSEL

Peter H. Shaffer, for appellant.

Susan Shinkman, Assistant Attorney General, with her Sydney Reuben, Assistant Attorney General, and Robert P. Kane, Attorney General, for appellee.

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

Author: Mencer

[ 36 Pa. Commw. Page 600]

This appeal is from an order of the Unemployment Compensation Board of Review (Board) affirming a referee's determination that Vance C. Gallagher (claimant), having been dismissed for willful misconduct

[ 36 Pa. Commw. Page 601]

    connected with his work, was ineligible for benefits. See Section 402(e) of the Unemployment Compensation Law (Act).*fn1

The claimant was employed as a bartender at Zima's Restaurant in Butler, Pennsylvania. The referee made only three findings of fact:

1. The claimant was last employed as a Bartender for approximately seven months by Zima's Restaurant, at the rate of $165 per week. The claimant's last day of work was March 4, 1976.

2. On March 5, 1976, the claimant was enjoying his day off and was in the employer's establishment that evening, when he called the employer's girl friend an unsavory name.

3. The employer dismissed the claimant because of the name-calling, and the confrontation that took place.

In willful misconduct cases, the burden of establishing the claimant's ineligibility is placed upon the employer, and our scope of review is limited to questions of law and to a determination of whether or not the findings of the Board are supported by substantial evidence. The question as to whether or not a claimant's conduct constituted willful misconduct is, of course, one of law and subject to our review. Unemployment Compensation Board of Review v. Walton, 21 Pa. Commonwealth Ct. 47, 343 A.2d 70 (1975).

The section of the statute at issue here provides that the misconduct which causes the discharge of the claimant, to be disqualifying, must be "connected with his work." Claimant called, or referred to, the employer's girl friend as a "bitch."*fn2 Although this happened

[ 36 Pa. Commw. Page 602]

    at the place of claimant's employment, it occurred on his "day off."*fn3 More significant, the remark, which we recognize as disrespectful and do not in any way approve, had nothing to do with the work the claimant was employed to do.*fn4

An employer may require that his employees be exemplary citizens off the job as well as on. He may

[ 36 Pa. Commw. Page 603]

    discharge them for failing to live up to this standard, unless restricted otherwise by contract provisions. However, acting in a manner meriting the employer's disapproval does not disqualify an employee from receiving unemployment compensation upon his discharge unless his dereliction is connected with his work.

We must conclude, on the findings made and the record in this case, that the offense of the claimant was not connected with his work in the sense in which that phrase is used in the Act. Our holding today is, of course, limited to the facts we have before us, and we do not imply that we approve of unsavory language.*fn5 Our careful review of the record, however, leads us to conclude that claimant's comment simply was not work connected, a prerequisite required by the Act for a denial of benefits.

[ 36 Pa. Commw. Page 604]

Accordingly, we make the following

Order

And Now, this 20th day of July, 1978, the order of the Unemployment Compensation Board of Review, dated October 22, 1976, disallowing a further appeal and thereby denying unemployment compensation benefits to Vance C. Gallagher, is hereby reversed.

Disposition

Reversed.


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