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DAVID G. BIVINS v. COMMONWEALTH PENNSYLVANIA (01/24/84)

decided: January 24, 1984.

DAVID G. BIVINS, 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 David G. Bivens, No. B-199590.

COUNSEL

Germaine Ingram, for petitioner.

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

Judges Rogers, MacPhail and Barry, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 79 Pa. Commw. Page 644]

This is a claimant's appeal from an order of the Unemployment Compensation Board of Review affirming a referee's decision denying the claimant unemployment compensation benefits on the ground that

[ 79 Pa. Commw. Page 645]

    his discharge was the result of his own willful misconduct.*fn1

The claimant was employed as a mathematics teacher by the School District of Philadelphia from December 19, 1979 to April 20, 1981. On April 21, 1981 he was notified by letter that he was suspended without pay, effective immediately, and that the school district intended to pursue his dismissal due to unsatisfactory work performance.

On March 13, 1981, a disturbance occurred in the claimant's classroom which culminated in the claimant's striking a student in the face with his hand. At the hearing before the referee, the claimant testified that the student had refused to take his seat, used profane language and threw chairs at the claimant. The claimant testified that "in defense of myself I swung my hand and hit him in the eye."

The employer's witness, the principal of the junior high school where the claimant taught, testified to the conversation she had with the claimant. She stated that the claimant, after describing the student's bad behavior, told her that "I let him have it in the face." When asked whether the claimant admitted that he threatened to kill the student, she responded that "he said that he might have made that statement." The principal also testified that the student in question was fifteen years old, 5' 3" tall and weighed 105 pounds, and that the school district prohibited the use of corporal punishment by teachers. The claimant concedes that he knew of the rule.

The board made the following pertinent findings:

2. On March 13, 1981, the claimant deliberately struck a student, causing injury to the student, and as a ...


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