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VIOLET A. SELAN v. UNEMPLOYMENT COMPENSATION BOARD REVIEW (07/02/81)

decided: July 2, 1981.

VIOLET A. SELAN, APPELLANT,
v.
UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, APPELLEE



No. 80-1-182, Appeal from the Order of the Commonwealth Court entered on June 4, 1980, at Docket No. 558 C.D. 1979.

COUNSEL

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

Richard Wagner, Asst. Atty. Gen., Chief Counsel, Harrisburg, for Unemployment Comp. Bd.

Edward J. Van Allen, Jerry S. McDevitt, Kirkpatrick, Lockhart, Johnson & Hutchison, Pittsburgh, Charles G. Hasson, Harrisburg, for Methodist Home.

O'Brien, C. J., and Roberts, J., would affirm on the unanimous opinion of the Commonwealth Court, Selan v. Commonwealth, Unemployment Compensation Board of Review, Author: Per Curiam

[ 495 Pa. Page 339]

ORDER

The Court being equally divided, the Order of the Commonwealth Court is affirmed.

[ 495 Pa. Page 340]

OPINION IN SUPPORT OF AFFIRMANCE

KAUFFMAN, Justice.

As the Opinion in Support of Reversal correctly notes, even a single incident evidencing claimant's disregard for her responsibilities may constitute willful misconduct. In recognition of the hazards of smoking, the employee handbook expressly restricts when and where it will be permitted. The memorandum of March 30, 1978 is even more explicit in prohibiting all smoking within the nursing home, except in specified areas, because "[s]moking creates a definite fire hazard." A knowing violation of a rule which jeopardizes the safety of the home and its residents can never be de minimus.

Accordingly, I would affirm the Order of the Commonwealth Court.

Opinion IN SUPPORT OF REVERSAL

NIX, Justice.

In my judgment the teaching of this Court's opinion in Frumento v. Unemployment Compensation Board of Review, 466 Pa. 81, 351 A.2d 631 (1976) makes it clear that the instant appellant is entitled to the relief which she seeks and that the Commonwealth Court erred in denying that relief. In Frumento this Court stated we would not accept the view that the fact an employee engaged in a single instance of conduct contrary to the expressed direction of an employer would necessarily justify the denial of unemployment compensation benefits. In that decision we recognized benefits should not be denied where the action of the employee was justifiable or reasonable although in disregard of the employer's expressed direction. Frumento v. Unemployment Compensation Board of ...


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