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decided: May 8, 1979.


Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Irwin Bale, No. B-139385.


Richard P. Perna, for petitioner.

Daniel R. Schuckers, Assistant Attorney General, with him Susan Shinkman, Assistant Attorney General, and Robert P. Kane, Attorney General, for respondent.

Judges Wilkinson, Jr., Mencer and Rogers, sitting as a panel of three. President Judge Bowman and Judges Crumlish, Jr., Mencer, Rogers, Blatt, DiSalle and Craig. Judges Wilkinson, Jr. and MacPhail did not participate. Opinion by President Judge Bowman. Dissenting Opinion by Judge Rogers. Judge Crumlish, Jr. and Craig join in this dissent.

Author: Bowman

[ 42 Pa. Commw. Page 489]

This case involves the denial of unemployment compensation benefits because of an employee's private communication to the employer's hotel guest concerning a nonbusiness related matter. At issue is whether the communication involved is protected speech under the First Amendment of the United States Constitution, rendering the denial of benefits unconstitutional as a violation of the First and Fourteenth Amendments, and, if not, whether the employee's conduct in sending the communication rose to willful misconduct justifying denial of unemployment compensation pursuant to Section 402(e) of the Unemployment Compensation Law (Law).*fn1

The appellant, Irwin A. Bala, was last employed by the Benjamin Franklin Hotel (Hotel) as a Roundsman, a night watchman without a uniform or firearms, from June 29, 1975 until March 21, 1976. Although he had during this ten month period received periodic warning notices concerning his job performance, according to the testimony of the Hotel's personnel manager

[ 42 Pa. Commw. Page 490]

Bala was terminated as a result of an incident which occurred on his last day of work, March 21, 1976.*fn2

This incident was precipitated by a visit to the Hotel by one John Geisman, the Pennsylvania Manager of Senator Fred Harris's Presidential campaign, a campaign toward which Bala had in the past evidenced some interest.

According to Bala's testimony before the referee, he arranged to meet Geisman in the hotel lobby prior to the start of his rounds on the night of March 21st. When Geisman did not appear he called up to his room and apparently was assured that Geisman would be right down. Geisman never appeared.

Feeling "angry" and "snubbed", Bala wrote a note on hotel stationery indicating his displeasure with the Harris campaign and suggesting he was going to work against Senator Harris in Pennsylvania.*fn3 On his normal rounds that evening he placed the note under the door of Geisman's room. Upon receipt of the note a complaint was lodged and Bala was discharged.

[ 42 Pa. Commw. Page 491]

Bala applied for unemployment compensation benefits, which application was turned down by the Bureau of Employment Security on the basis of Section 402(e). He appealed this determination, and after hearing before a referee, was again denied benefits. Bala appealed to the Unemployment Compensation Board of Review which affirmed the referee, and this appeal followed.

Appellant argues that his activity was protected speech under the First Amendment, and that the subsequent denial of unemployment benefits on account of his communication amounts to an impermissible infringement of his rights protected by the First and Fourteenth Amendments to the United States Constitution.

He argues further that his actions did not amount to willful misconduct under the law because his communication was personal in nature and not sufficiently work-related to support the conclusion that his actions amounted to an intentional disregard of the standards which his employer had a right to expect.

The Unemployment Compensation Board of Review (Board) counters that the note Bala delivered was of no public importance, was harmful to the Hotel's business, and was not protected by the First Amendment. Because he annoyed a guest with a disrespectful note, continues the Board, he should be considered discharged for willful misconduct and not entitled to unemployment compensation benefits.

[ 42 Pa. Commw. Page 492]

This appeal is another instance of the continuing struggle to maintain a proper balance between individual rights and the increasing collectivism of modern society.*fn4 As government hegemony has proliferated within the context of an increasingly complex industrialized

[ 42 Pa. Commw. Page 493]

    society, an inevitable tension has arisen between the system of freedom of expression emanating out of the First Amendment and the institutional concerns of government in organizing the relationship between individual and state. If there is to be learned but a single lesson from the developing decisional law

[ 42 Pa. Commw. Page 494]

    on this subject it is that the static application of a perceived principle behind the Amendment grows increasingly difficult.*fn5

[ 42 Pa. Commw. Page 495]

We believe that it is somewhat simplistic to claim, as appellant does here, that his note to a presidential campaign manager, being "pure speech" is thereby necessarily entitled to First Amendment protection, to be comprised only in the event of a "compelling" state interest. See Buckley v. Valeo, 424 U.S. 1, 44-45 (1976) ("[T]he constitutionality . . . turns on whether the governmental interests advanced . . . satisfy the exacting scrutiny applicable to limitations on core First Amendment rights of political expression."); Sherbert v. Verner, 374 U.S. 398, 406 (1963); Sweezy v. New Hampshire, 354 U.S. 234, 265 (1957) (Frankfurter, J., concurring) ("For a citizen to be ...

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