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DEBRA ANN ALBERTSON v. COMMONWEALTH PENNSYLVANIA (10/18/82)

decided: October 18, 1982.

DEBRA ANN ALBERTSON, 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 Debra Ann Albertson, No. B-197618.

COUNSEL

David A. Scholl, for petitioner.

William J. Kennedy, Associate Counsel, with him, Richard L. Cole, Jr., Chief Counsel, for respondent.

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

Author: Macphail

[ 69 Pa. Commw. Page 395]

Debra Ann Albertson (Claimant) has appealed from an order of the Unemployment Compensation Board of Review (Board) which affirmed a referee's denial of unemployment compensation benefits pursuant to the willful misconduct provisions of the Unemployment Compensation Law (Law).*fn1

The findings of the Board, which are supported by substantial record evidence, establish that Claimant was last employed by Classic Photo (Employer) as an assistant route supervisor. Her employment was terminated on December 19, 1980 as a result of her failure to make a required stop to service an account along her route. This omission was in violation of an Employer rule which provided for dismissal should any stops be skipped. Claimant's application for unemployment compensation benefits was denied by the Office of Employment Security and, following a hearing, by a referee and the Board. Each of the decisions

[ 69 Pa. Commw. Page 396]

    was based upon a finding that Claimant's conduct constituted willful misconduct within the meaning of Section 402(e) of the Law, 43 P.S. ยง 802(e).

On appeal, Claimant argues that her admitted violation of the pertinent rule was not deliberate, that a single violation of the rule does not rise to the level of willful misconduct and that Claimant had good cause for the violation. We find each of these arguments to be without merit.

The burden is on the employer to prove willful misconduct and where, as here, a violation of an employer's rule is involved, the employer must prove both the existence of the rule and the fact of its violation. Doyle v. Unemployment Compensation Board of Review, 57 Pa. Commonwealth Ct. 494, 426 A.2d 756 (1981) and Holomshek v. Unemployment Compensation Board of Review, 39 Pa. Commonwealth Ct. 503, 395 A.2d 708 (1979). If the employee then attempts to justify the violation, he has the burden of establishing good cause. Partsch v. Unemployment Compensation Board of Review, 64 Pa. Commonwealth Ct. 293, 439 A.2d 1331 (1982).

In the instant case, the Claimant admits the existence of the pertinent rule and the fact of its violation. She argues, however, that her violation was not deliberate. It is true that an inadvertent violation of an employer's rule does not necessarily constitute willful misconduct. Morysville B. Works, Inc. v. Unemployment Compensation Board of ...


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