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HOWARD HAMMOND v. COMMONWEALTH PENNSYLVANIA (09/07/83)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: September 7, 1983.

HOWARD HAMMOND, 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 Howard Hammond, No. B-201789.

COUNSEL

Meris L. Bergquist, for petitioner.

Richard F. Faux, Associate Counsel, with him Richard L. Cole, Jr., Chief Counsel, for respondent.

Judges Williams, Jr., Craig and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 77 Pa. Commw. Page 71]

Claimant, Howard Hammond, appeals here from a decision of the Unemployment Compensation Board of Review (Board) which adopted and affirmed a referee's decision holding Claimant ineligible for benefits on the basis of willful misconduct under 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). The

[ 77 Pa. Commw. Page 72]

Board reasoned that Claimant violated Employer rule 9-D of the Labor Management Agreement prohibiting company employees found on company property from being "under the influence of narcotics or dangerous drugs."

Claimant was laid off by Sun Ship, Inc. due to a lack of work. He was recalled by Sun Ship, however, on July 15, 1981 to his former position as a grit blaster. Claimant was required to undergo a physical exam when he reported for re-employment on Monday, July 20, 1981. The result of the physical showed that there was a controlled substance*fn1 in the Claimant's urine for which he did not have a doctor's prescription. As a result of this test, Claimant was discharged for being on company property while under the influence of a controlled substance which was not prescribed.

Claimant testified that on Saturday, July 18, 1981, he did take a pill which was given to him by a friend who suggested that it would help his bronchial condition. He contends, however, that there is not substantial evidence*fn2 on the record to support the Board's finding that he reported to work "under the influence" of a controlled substance. We agree.

[ 77 Pa. Commw. Page 73]

The mere fact that an unidentified, unprescribed drug was found in Claimant's urine does not of itself constitute substantial evidence to support the finding that Claimant was "under the influence"*fn3 of the drug. Claimant stated and the Board found that he took this pill two days before he was to begin his re-employment. Other than the fact that Claimant took this unidentified substance, there is no evidence of record to show that Claimant was "under the influence" of a dangerous drug or narcotic when he reported for work, two days later, on Monday, July 20, 1981. Without evidence showing that Claimant's ability to perform his job was in some way impaired, either physically or mentally, there can be no finding that Claimant was "under the influence" of a drug. Thus, there is no factual basis to substantiate the legal conclusion that Claimant was ineligible for benefits on the basis of willfully violating an employer rule which prohibits an employee from being on company property when "under the influence of narcotics or dangerous drugs."

The Board's order is reversed.*fn4

[ 77 Pa. Commw. Page 74]

Order

It is ordered that the order of the Unemployment Compensation Board of Review numbered B-201789 and dated December 4, 1981, is hereby reversed and the record remanded for the computation of benefits.

Disposition

Reversed and remanded.


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