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MARY E. POLK v. COMMONWEALTH PENNSYLVANIA (04/21/80)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: April 21, 1980.

MARY E. POLK, 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 Mary E. Polk, No. B-162373.

COUNSEL

Edward Sparkman, for petitioner.

Charles G. Hasson, Assistant Attorney General, with him Richard Wagner, Chief Counsel, and Edward G. Biester, Jr., Attorney General, for respondent.

Judges Mencer, Craig and Williams, Jr., sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 50 Pa. Commw. Page 631]

Claimant Mary Polk appeals from the Unemployment Compensation Board of Review's determination, after remand and rehearing, that she was ineligible for benefits under Section 402(e) of the Pennsylvania Unemployment Compensation Law, 43 P.S. ยง 802(e),*fn1 the willful misconduct disqualification, because she failed, without good cause, to comply with her employer's order.

Claimant was employed as a community outreach worker for the Haverford Community Center located at 631 North 39th Street, Philadelphia, Pennsylvania. Incidents of violence at the center and a shooting in the gymnasium of the facility on March 1, 1978 precipitated the staff's relocation to a satellite facility a few blocks away for a short period. However, on March 16, 1978, the board of directors of the center's

[ 50 Pa. Commw. Page 632]

    parent group met and determined that the program be immediately returned to the Haverford Center.

The employer's representative testified that, while the program was located at the satellite facility, safety improvements were made at the center, which included a buzzer system for the door. Periodic surveillance of the building was established, with contacts to a crisis intervention unit and the local police, and a staff member was posted full time at the facility entrance.

On April 21, 1978, the employer sent letters to staff members directing them to report to the Haverford Center on Monday, April 24, 1978, adding, "[T]his memo is to be considered as a termination notice for those failing to return."

Claimant never reported to the Haverford Center. She asserts on appeal, as she did at the remand hearing, that she was afraid to return to the center because her life had been threatened.

The determination of whether an employee's conduct constitutes willful misconduct is made in light of all the circumstances; we evaluate both the reasonableness of the employer's request and the employee's reasons for noncompliance. If there is good cause for the employee's action, it cannot be charged as willful misconduct. Frumento v. Unemployment Compensation Board of Review, 466 Pa. 81, 351 A.2d 631 (1976). In cases like this, where the employee comes forward to justify the violation, the employee has the burden to establish good cause. Holomshek v. Unemployment Compensation Board of Review, 39 Pa. Commonwealth Ct. 503, 505, 395 A.2d 708-09 (1979).

Claimant asserts that a murder at the center and a later attack on a staff member, coupled with threats of personal violence, constitute a reasonable basis for her refusal to comply with the employer's order, and, therefore, that her refusal to return to the center does not amount to willful misconduct.

[ 50 Pa. Commw. Page 633]

The board specifically found that the employer took measures to insure employee safety at the center and that:

7. Neither claimant nor any of the fellow employees would have been in personal danger had they returned to work at the agency's original location.

The credibility of witnesses and the weight of their testimony are matters for the compensation authorities, who are not required to accept even uncontroverted testimony as true. Edelman v. Unemployment Compensation Board of Review, 10 Pa. Commonwealth Ct. 275, 277, 310 A.2d 707-08 (1973).

[ 50 Pa. Commw. Page 634]

On this record, we cannot say that the board capriciously disregarded competent evidence or deliberately disregarded competent testimony which one of ordinary intelligence could not possibly have avoided in reaching the result.*fn2 Unemployment Compensation Page 634} Board of Review v. Cooper, 25 Pa. Commonwealth Ct. 256, 259, 360 A.2d 293-94 (1976).

Proximity to an act of violence is not sufficient to justify claimant's refusal where claimant has not satisfied the finder of fact that she was within the actual scope of danger. Without minimizing the serious psychological impact of nearby violence, we must nevertheless grant that being close to violence affecting another is not the same as being personally in the line of danger. The record does not show that claimant was wholly surrounded by an environment of danger.

Unlike the case of McLean v. Unemployment Compensation Board of Review, 476 Pa. 617, 383 A.2d 533 (1978), where the Pennsylvania Supreme Court determined that a claimant's refusal to operate his employer's truck was reasonable under the circumstances because he "justifiably refused to risk his life by relying on a repair shop which had already failed

[ 50 Pa. Commw. Page 635]

    twice to put the truck in a safe condition," here claimant has proved her apprehension, but not an objective cause for it. Claimant did not satisfy the finder of fact that a return to the Haverford Center would endanger her own personal safety.

Claimant also states here on appeal that she was denied equal protection of the laws, as guaranteed by Article III, Section 32 of the Pennsylvania Constitution and the Fourteenth Amendment, Section 1, of the United States Constitution, because all of the other employees who were similarly discharged received unemployment compensation benefits.

There is no evidence in the record that claimant's co-workers received compensation. Claimant has merely made an assertion without any substantiation; we therefore have no basis on which to evaluate her discrimination claim.

Therefore, we affirm the order of the board denying claimant benefits.

Order

And Now, this 21st day of April, 1980, the order of the Unemployment Compensation Board of Review (B-162373-B) dated April 5, 1979, is affirmed.

Disposition

Affirmed.


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