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MARYJO S. KUSTAFIK v. COMMONWEALTH PENNSYLVANIA (07/22/83)

decided: July 22, 1983.

MARYJO S. KUSTAFIK, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeal from the Order of the Unemployment Compensation Board of Review in case of In re: Claim of Maryjo S. Kustafik, Na. B-200271.

COUNSEL

William M. Thomas, Thomas and Hair, for petitioner.

John T. Kupchinsky, Associate Counsel, with him Richard L. Cole, Jr., Chief Counsel, for respondent.

Judges Rogers, Williams, Jr. and Barbieri, sitting as a panel of three. Opinion by Judge Barbieri.

Author: Barbieri

[ 75 Pa. Commw. Page 623]

Maryjo S. Kustafik appeals here from a Decision and Order of the Unemployment Compensation Board of Review (Board) denying her benefits pursuant to the mandate of Section 402(e) of the Unemployment Compensation Law (Law),*fn1 the willful misconduct provision. We affirm.

Claimant was last employed as the supervisor of the North Gilmore Street facility of the Good Shephard Workshop, a position she held for approximately thirteen months prior to her last day of work, July 1, 1981. On July 1, 1981, Claimant was placed in charge of moving the North Gilmore Street facility to a new location, and at 11:30 A.M. left for lunch with several other employees. Although Claimant was only allowed a half hour for lunch, she didn't return to work

[ 75 Pa. Commw. Page 624]

    until between 1:15 P.M. and 1:30 P.M. Upon her return from lunch, Claimant was sent home and on the following day was discharged. The Office of Employment Security subsequently denied Claimant's request for benefits, but on appeal a referee awarded benefits concluding that "[a]t the most here, claimant may have been guilty of misjudgment. . . ." Upon a further appeal, however, the Board reversed concluding that Claimant's actions in taking an extended lunch break on a day when she was in charge of moving amounted to disqualifying willful misconduct. The present appeal followed.

Willful misconduct has been defined by the Court as

(1) the wanton and wilful disregard of the employer's interest, (2) the deliberate violation of rules, (3) the disregard of standards of behavior which an employer can rightfully expect from his employee, or (4) negligence which manifests culpability, wrongful intent, evil design, or intentional and substantial disregard for the employer's interests or of the employee's duties and obligations.

Kentucky Fried Chicken v. Unemployment Compensation Board of Review, 10 Pa. Commonwealth Ct. 90, 97, 309 A.2d 165, 168-169 (1973). The employer, of course, has the initial burden of establishing that an employee was discharged for willful misconduct, Miller v. Unemployment Compensation Board of Review, 67 Pa. Commonwealth Ct. 102, 445 A.2d 1372 (1982), and where, as here, the employer has prevailed below "our scope of review is . . . limited to questions of law and a determination as to whether or not the Board's findings are supported ...


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