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WILLIAM A. KILPATRICK v. COMMONWEALTH PENNSYLVANIA (05/07/81)

decided: May 7, 1981.

WILLIAM A. KILPATRICK, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeal from the Order of the Unemployment Compensation Board of Review in the case of In Re: Claim of William A. Kilpatrick, No. B-176478.

COUNSEL

Michelle R. Terry, for petitioner.

Karen Durkin, Assistant Attorney General, with her Elsa D. Newman-Silverstein, Assistant Attorney General, Richard Wagner, Chief Counsel, and Harvey Bartle, III, Attorney General, for respondent.

President Judge Crumlish and Judges Williams, Jr. and Craig, sitting as a panel of three. Opinion by Judge Williams, Jr. Judge Wilkinson, Jr. did not participate in the decision in this case.

Author: Williams

[ 59 Pa. Commw. Page 202]

Claimant appeals to this Court to reverse the decision of the Unemployment Compensation Board of Review (Board), which upheld a referee's determination that claimant is not entitled to benefits under Section 402(e) of the Unemployment Compensation

[ 59 Pa. Commw. Page 203]

Law (Act), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e), for willful misconduct. We affirm the order of the Board.

Claimant had been employed as a fabricator by the Westinghouse Electric Company for over nineteen years, when he became involved in an incident on his employer's premises which necessitated his hospitalization. The Board found that on May 16, 1979, at approximately 10:30 P.M., the claimant participated in an altercation with another employee.*fn1 Immediately thereafter, the claimant, when questioned by his supervisor, stated that the fellow employee and he had had a disagreement, and had decided to step outside to settle the matter.*fn2

The employer suspended claimant for five days, later changing the suspension to a discharge for violating the employer's rules against fighting and disorderly conduct on the premises.

At the hearing, claimant testified that he had not stepped outside to fight, but rather to get a breath of fresh air, and that his injury was caused by a blow from an unseen assailant. He stated that he remembered nothing from the moment he received the blow until he woke up in the hospital, that he has no recollection of any conversation with the supervisor concerning a fight.

Our scope of review

     in the absence of fraud, is confined to questions of law and a determination of whether the findings of the Unemployment Compensation Board of Review are supported by the evidence, leaving to the Board questions of credibility and weight of the evidence ...


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