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PASCO MARIANO v. COMMONWEALTH PENNSYLVANIA (07/24/81)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: July 24, 1981.

PASCO MARIANO, 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 Pasco Mariano, No. B-173340.

COUNSEL

Robert Freeman, with him Terrence J. Herron, for petitioner.

Charles G. Hasson, Assistant Attorney General, with him Richard Wagner, Chief Counsel, and Harvey Bartle, III, Acting Attorney General, for respondent.

President Judge Crumlish and Judges Rogers and Blatt, sitting as a panel of three. Opinion by President Judge Crumlish.

Author: Crumlish

[ 61 Pa. Commw. Page 39]

Pasco Mariano, while on strike against his employer, was discharged for physically assaulting a fellow non-striking employee. Mariano appeals the Unemployment Compensation Board of Review's determination that he is ineligible for benefits due to willful misconduct.*fn1 We affirm.

[ 61 Pa. Commw. Page 40]

Mariano unsuccessfully contends that the Board improperly remanded the record to a referee for additional testimony. The law is clear that the decision to grant a remand is strictly within Board discretion. Shriner v. Unemployment Compensation Board of Review, 42 Pa. Commonwealth Ct. 368, 400 A.2d 934 (1979); 34 Pa. Code ยงยง 101.104 and 101.108. A close examination of the record reveals no abuse of this broad discretion.*fn2

Mariano also asserts that his actions do not constitute willful misconduct. Although conflicting testimony was presented, the Board, within its province, chose to believe witnesses who testified that Mariano physically attacked another employee. We have long held that such conduct constitutes willful misconduct.*fn3 Wisniewski v. Unemployment Compensation Board of Review, 34 Pa. Commonwealth Ct. 332, 383 A.2d 254 (1978).

Affirmed.

Order

The decision of the Unemployment Compensation Board of Review, No. B-173340, dated June 19, 1979, is affirmed.

Disposition

Affirmed.


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