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JAMES S. MULA v. COMMONWEALTH PENNSYLVANIA (11/02/79)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: November 2, 1979.

JAMES S. MULA, 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 James S. Mula, No. B-159928.

COUNSEL

Albert Peter Durigon, for appellant.

David Confer, Assistant Attorney General, for appellee.

Judges Crumlish, Jr., Wilkinson, Jr. and Craig, sitting as a panel of three. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 47 Pa. Commw. Page 178]

James S. Mula, a manager for Ponderosa Steak House*fn1 was terminated from his employment for throwing a chair at a patron during an altercation. The Unemployment Compensation Board of Review denied benefits for willful misconduct chargeable under Section 402(e)*fn2 of the Unemployment Compensation Law. We affirm.

Mula contends that he escapes disqualification under Section 402(e) because the patron initiated the violence by punching him.

While we recognize Mula's right to defend himself against physical assault, the record establishes that his action was in retaliation for being hit rather than

[ 47 Pa. Commw. Page 179]

    self-defense and hence will not excuse his conduct. At the time the chair was thrown, the patron was standing ten to 15 feet away, was not advancing toward the claimant or making any other motion which would indicate additional assault.

Further, immediately surrounding the patron were several innocent by-standers who were put in danger of physical harm by the claimant's action. In light of Mula's special position as manager, training in customer relations, and his responsibility to maintain the safe and efficient management of the restaurant, his conduct fell far below that standard which his employer had a right to expect and is sufficient to constitute willful misconduct under Section 402(e).

Accordingly, we

Order

And Now, this 2nd day of November, 1979, the decision of the Unemployment Compensation Board of Review denying benefits to James S. Mula is affirmed.

Disposition

Affirmed.


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