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VIOLET A. SELAN v. COMMONWEALTH PENNSYLVANIA (06/04/80)

decided: June 4, 1980.

VIOLET A. SELAN, 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 Violet A. Selan, No. B-169629.

COUNSEL

Bruce D. Campbell, Meyer, Darragh, Buckler, Bebenek & Eck, for petitioner.

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

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

Author: Mencer

[ 52 Pa. Commw. Page 8]

Violet A. Selan (claimant) has appealed from an order of the Unemployment Compensation Board of Review (Board) which denied her benefits because of her willful misconduct pursuant to Section 402(e) of the Unemployment Compensation Law (Act), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. ยง 802(e). We affirm.

On September 12, 1978, claimant, a nurse's assistant, was discovered smoking in a patient's bathroom contrary to the published rules of her employer, The Methodist Home (Home). After a discussion with the Home's personnel director, during which claimant signed a statement acknowledging that she had violated the Home's rules, claimant was discharged. Claimant's application for benefits was denied at all levels by the compensation authorities, and this appeal followed.

[ 52 Pa. Commw. Page 9]

Although claimant admits that she was smoking in a patient's bathroom while on a comfort break, nevertheless she argues that her conduct did not violate the Home's smoking rules and therefore cannot constitute willful misconduct.*fn1 We disagree.

The Home's personnel handbook clearly provided that smoking was allowed only in specially designated areas.*fn2 In keeping with this policy, the Home set aside five employee smoking areas, none of which included the location where claimant smoked. A memo designating these smoking zones was posted on all employee bulletin boards and was read at various employee meetings. Although claimant denied any knowledge of this memo, the Board, as the ultimate factfinder, see Unemployment Compensation Board of Review v. Wright, 21 Pa. Commonwealth Ct. 637, 347 A.2d 328 (1975), chose to believe otherwise. Further, it is undisputed that claimant had received a personnel handbook and was aware of the smoking rule in

[ 52 Pa. Commw. Page 10]

    it. These factors, combined with claimant's signed admission concerning the rule, constitute substantial evidence to support the Board's findings on claimant's knowing violation of the rule.*fn3

Claimant next argues that, even if she did violate the Home's rule on smoking, the violation was de minimis and did not rise to the level of willful misconduct. Again, we disagree, for it is settled that a deliberate violation of a reasonable employer rule, without good cause, constitutes willful misconduct. Lipfert v. Unemployment Compensation Board of Review, 46 Pa. Commonwealth Ct, 206, 406 A.2d 251 (1979); Urso v. Unemployment Compensation Board of Review, 39 Pa. Commonwealth Ct. 593, 396 A.2d 70 (1979). Although this court has held that certain technical or harmless infractions of an employer's rules or standards of behavior do not constitute willful misconduct, see e.g., Williams v. Unemployment Compensation Board of Review, 32 Pa. Commonwealth Ct. 641, 380 A.2d 932 (1977), and cases cited therein, we have also stated that this rule ...


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