Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Stella Ellis, No. B-153163-B.
Richard P. Perna, for petitioner.
Elsa D. Newman-Silverstine, Assistant Attorney General, with her, Richard Wagner, Chief Counsel, and Harvey Bartle, III, Acting Attorney General, for respondent.
Judges Rogers, Blatt and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.
[ 56 Pa. Commw. Page 629]
Stella Ellis (Claimant) appeals to this Court from an order of the Unemployment Compensation Board of Review (Board) which denied unemployment compensation benefits to Claimant. The Board found that Claimant's unemployment was due to willful misconduct and that she, therefore, was ineligible to receive benefits under the provisions of Section 402(e) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e). For the reasons which follow, we reverse.
Claimant was employed by the Philadelphia State Hospital (Employer) as a psychiatric aide from November 7, 1966 until July 8, 1977 at which time she retired having been presented with the choice between retirement and discharge. The dispute in the instant case involves an allegation that Claimant physically abused a patient at the Hospital on June 18, 1977. Following the alleged incident Employer conducted an investigation and concluded that Claimant was at
[ 56 Pa. Commw. Page 630]
fault. Based on evidence adduced at two hearings*fn1 the Board agreed and concluded that Claimant, who denied injuring the patient, was indeed guilty of willful misconduct. The Board relied, in particular, on the Employer's investigative report and the fact that Claimant failed to immediately deny the incident or pursue a grievance procedure.
The burden of proof, of course, is on the Employer to establish willful misconduct. Kentucky Fried Chicken of Altoona, Inc. v. Unemployment Compensation Board of Review, 10 Pa. Commonwealth Ct. 90, 309 A.2d 165 (1973). Our scope of review in cases of this nature is to determine whether an error of law has been committed and whether the findings of the Board are supported by substantial competent evidence. Unemployment Compensation Board of Review v. Lee, 20 Pa. Commonwealth Ct. 154, 340 A.2d 586 (1975). There can be little doubt that if substantial competent evidence was introduced to support the Employer's allegation of physical abuse, such conduct could constitute willful misconduct as a matter of law. See Beville v. Unemployment Compensation Board of Review, 15 Pa. Commonwealth Ct. 371, 327 A.2d 197 (1974).
[ 56 Pa. Commw. Page 631]
The evidence introduced against Claimant can be summarized as follows: At the first hearing, a nurse, Ms. McDougall, testified relative to her interview of the alleged victim, Elizabeth Ewald. Ms. McDougall stated that, "When the patient related to me how she sustained these injuries she also related, not by name, but related a description of the nurse who did this. . . ." Ms. McDougall also interviewed another patient (apparently the sole witness to the alleged attack) who "related to me what she had seen and heard and, that coincided with the victim's statement." The nurse further testified that "the identification always came back to Mrs. Stella Ellis." Employer introduced into evidence a written report of an investigation it conducted which relates additional interviews of the alleged victim and witness. The report also states that the sole witness to the incident, another patient, identified Claimant as the person she saw beating Ms. Ewald. Next, a written statement signed by a nurse, Ms. Levy, was admitted. The statement includes physical descriptions, as related by the alleged victim and witness, of the person who assaulted the victim. Also admitted into evidence were written statements by some Hospital employees to the effect that they did not observe bruises on Ms. Ewald immediately prior to Claimant's period of duty on June 18, 1977 as well as statements by other employees who allegedly did observe bruises on Ms. Ewald after Claimant's period of duty. No effort was made to qualify any of these statements for admission into evidence.
Claimant, who testified at the second hearing and was represented by counsel, acknowledged that her eyeglasses had been broken on June 18, 1977 when Ms. Ewald struck Claimant on the face. Claimant alleges, however, that the incident ended at that point. She specifically denies hitting the ...