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ALANA LITWAK v. COMMONWEALTH PENNSYLVANIA (08/27/82)

decided: August 27, 1982.

ALANA LITWAK, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT. TEMPLE UNIVERSITY, INTERVENOR



Appeal from the Order of the Unemployment Compensation Board of Review in the case of In Re: Claim of Alana Litwak, No. B-190334.

COUNSEL

Andrew F. Erba, for petitioner.

John Kupchinsky, Associate Counsel, with him Richard C. Lengler, Associate Counsel, and Richard L. Cole, Jr., Chief Counsel, for respondent.

Arlene D. Fisk, with her Theodore J. Martineau, Ballad, Spahr, Andrews & Ingersoll, for intervenor.

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

Author: Crumlish

[ 68 Pa. Commw. Page 467]

Alana Litwak appeals an Unemployment Compensation Board of Review denial of benefits. We affirm.

Litwak was a "floater"*fn1 in Temple University's Woodhaven Center client care section. She was notified by her superior that she was being permanently assigned to the Willowood facility to toilet assist 5 to 12 year old retarded children. Litwak argued with her superior and refused the assignment. She asserted that she was ill and left. She was discharged for insubordination. The Board, adopting the referee's findings, concluded that she was ineligible for benefits because her conduct amounted to willful misconduct.*fn2

The employer has the burden of proving willful misconduct. Once willful misconduct is proven, the burden then rests with the claimant to show justification

[ 68 Pa. Commw. Page 468]

    for the misconduct. Gwin v. Unemployment Compensation Board of Review, 58 Pa. Commonwealth Ct. 69, 71, 427 A.2d 295, 297 (1981). Since Litwak failed to meet that burden, our scope of review is limited to determining whether the conclusions of law and findings of the Board can be sustained without a capricious disregard of competent evidence. Id.

Issues of willful misconduct and justification are both questions of law subject to our review. Id. Here the Board adopted the referee's findings that:

3. On June 11, 1980, because of an emergency situation, claimant was assigned by the assistant director to work permanently at Willowood, ...


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