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FIRST FAMILY FEDERAL SAVINGS AND LOAN ASSOCIATION v. COMMONWEALTH PENNSYLVANIA (09/03/82)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: September 3, 1982.

FIRST FAMILY FEDERAL SAVINGS AND LOAN ASSOCIATION, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT. JOSEPH P. GENUARDI, INTERVENOR

Appeal from the Order of the Unemployment Compensation Board of Review in the case of In Re: Claim of Joseph P. Genuardi, No. B-195752.

COUNSEL

Robert J. Kerns, Landis, Williams & Kerns, for petitioner.

James C. Sommar, with him George W. Tracy, Holl, Sommar & Tracy, for intervenor.

No appearance for respondent.

President Judge Crumlish, Jr. and Judges Williams, Jr. and Doyle, sitting as a panel of three. Opinion by President Judge Crumlish, Jr.

Author: Crumlish

[ 68 Pa. Commw. Page 579]

First Family Federal Savings and Loan Association (employer) appeals from an Unemployment Compensation Board of Review order granting benefits to Joseph P. Genuardi (employee). We affirm.

When Genuardi, a janitorial supervisor, approached the employer's branch manager to discuss the conduct of a subordinate, an argument ensued during which Genuardi, who has a penchant for manual gesturing, pointed at the manager, three feet away, who reached out and slapped the employee's hand.

[ 68 Pa. Commw. Page 580]

Genuardi, responding to the contact, warned the manager that, if she touched him again, he would reciprocate, at which point the confrontation ceased. Consequently, Genuardi was discharged.

The Office of Employment Security denied benefits, concluding that the employee's behavior amounted to willful misconduct under Section 402(e) of the Unemployment Compensation Law (Law).*fn1 The referee reversed, and the Board affirmed the granting of benefits.

The employer has the burden of proving an employee's willful misconduct by substantial evidence. Gane v. Unemployment Compensation Board of Review, 41 Pa. Commonwealth Ct. 292, 293, 398 A.2d 1110, 1111 (1979). Where, as here, the employer fails to sustain this burden, our scope of review is limited to determining whether the Board's fact findings are consistent with each other, and with the legal conclusions,

[ 68 Pa. Commw. Page 581]

    and whether such findings can be sustained without capricious disregard of competent evidence.*fn2 Helsel v. Unemployment Compensation Board of Review, 54 Pa. Commonwealth Ct. 320, 323, 421 A.2d 496, 498 (1980).

Employer presents two issues on appeal:

1) Whether the altercation between the employee and the branch manager constituted willful misconduct; and

2) Whether the Board capriciously disregarded competent evidence by failing to address an alleged warning issued to Genuardi following a previous altercation between Genuardi and a co-employee.*fn3

As to the first issue, it is unquestioned that an employee's threat to inflict bodily injury upon a superior generally is willful misconduct, Wilson v. Unemployment Compensation Board of Review, 15 Pa. Commonwealth Ct. 314, 316, 325 A.2d 500, 501 (1974), since such conduct evinces at least a disregard of the behavioral standards which an employer has a right to expect. Nesmith v. Unemployment Compensation Board of Review, 43 Pa. Commonwealth Ct. 579, 581, 402 A.2d 1132, 1133 (1979). Where, however, the offensive remark was justifiably provoked and is of a de minimis nature, it does not amount to willful misconduct. Isabella v. Unemployment Compensation Board of Review, 59 Pa. Commonwealth Ct. 298, 302, 429 A.2d 1220, 1222 (1981). Here, Genuardi, within his authority as janitorial supervisor, approached the branch manager

[ 68 Pa. Commw. Page 582]

    to discuss a supervisory problem. It is undisputed that the branch manager initiated the physical contact. It was certainly justifiable for Genuardi to warn the aggressor that future contact would be met in kind.*fn4 Moreover, the heated dialogue was de minimis : the remark, nurtured in the heat of argument, was clearly conditional (i.e., Genuardi threatened to retaliate only if his physical integrity were violated once more*fn5), and there was no indication whatsoever that the employee had any intent to act in accordance with the remark. We agree that Genuardi's impulsive and de minimis retort was justifiably provoked, thus falling far short of the level of willful misconduct.

As to the employer's second issue, we conclude that the Board did not capriciously disregard competent evidence by failing to find willful misconduct based on an alleged warning issued to Genuardi following a previous altercation between Genuardi and a co-employee. The employer contends that, following the prior incident, Genuardi had been warned that a recurrence

[ 68 Pa. Commw. Page 583]

    would result in immediate dismissal,*fn6 an allegation that Genuardi specifically denies. Since questions of credibility and the resolution of testimonial conflicts are for the Board, Affalter v. Unemployment Compensation Board of Review, 40 Pa. Commonwealth Ct. 482, 485, 397 A.2d 863, 865 (1979), and since we must examine the testimony in the light most favorable to the party who prevailed below, Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 355, 378 A.2d 829, 831 (1977), we would be remiss in finding that Genuardi received an advanced warning.*fn7

Order

The order of the Unemployment Compensation Board of Review, No. B-195752 dated June 3, 1981, is hereby affirmed.

Disposition

Affirmed.


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