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JAMES JONES v. COMMONWEALTH PENNSYLVANIA (06/02/83)

decided: June 2, 1983.

JAMES JONES, 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 James Jones, No. B-195598.

COUNSEL

George M. Sere, for petitioner.

Jonathan B. Sprague, Associate Counsel, with him Richard L. Cole, Jr., Chief Counsel, for respondent.

Judges Blatt, MacPhail and Doyle, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 74 Pa. Commw. Page 573]

James Jones (Claimant) has appealed from an order of the Unemployment Compensation Board of Review (Board) finding him ineligible for unemployment compensation benefits due to willful misconduct. Section 402(e) of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. ยง 802(e). We affirm.

Claimant was last employed by the Blue Bird Food Corporation (Employer) as a utility worker on January 23, 1981, when he was suspended following an altercation with a fellow employee. His suspension was subsequently converted to a discharge on January 27, 1981. The Claimant's application for benefits was denied by both the Office of Employment Security (Office) and, following a hearing at which the Employer failed to appear, by the referee. On appeal, the Board similarly found Claimant ineligible for benefits due to his willful misconduct and in so doing made the following pertinent findings of fact:

2. During the course of the claimant's employment he had been involved in a physical altercation

[ 74 Pa. Commw. Page 574]

    with a co-worker and was warned that any future incident would subject him to dismissal.

3. On January 23, 1981, claimant was involved in a verbal and physical altercation with a co-worker.

Claimant subsequently perfected his appeal to this Court.

It is well settled that the Employer bears the burden of proving willful misconduct. Partsch v. Unemployment Compensation Board of Review, 64 Pa. Commonwealth Ct. 293, 439 A.2d 1331 (1982). Where, as here, the party with the burden of proof has prevailed below, our scope of review is to determine whether there is substantial evidence to support the Board's fact findings or whether an error of law has been committed. Fritzo v. Unemployment Compensation Board of Review, 59 Pa. Commonwealth Ct. 268, 429 A.2d 1215 (1981). We are also mindful that when a party has prevailed below it is entitled to any inferences which ...


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