Appeal from the Order of the Unemployment Compensation Board of Review in case of In re: Claim of Patricia Ellis, No. B-212971.
Andrew F. Erba, for petitioner.
Michael D. Alsher, 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. Dissenting Opinion by Judge Barry.
[ 80 Pa. Commw. Page 337]
This is the appeal of an unemployment compensation claimant from an order of the Unemployment Compensation Board of Review reversing a referee's decision granting her benefits. The board reversed the referee and denied benefits on the basis that the claimant's discharge was the result of her own willful misconduct.
The claimant was formerly employed as a waitress for Once Upon A Porch, a restaurant in Philadelphia, Pennsylvania, where she worked for eighteen months at an hourly rate of $2.01 plus tips. The events which resulted in her discharge are in dispute.
The employer testified that on her last day of work, August 7, 1982, the claimant "stomped through the restaurant yelling and swearing" and that this incident "had to do with a recipe for lemonade, I believe." He further testified that this conduct "was interfering with the staff and . . . with the customers, the clientele," and that he did not reprimand her, or even speak to her, at the time the incident occurred.
The claimant denied that this event described by her employer took place. She testified at the hearing that "this is the first I've heard about any incident. No incident ever occurred . . ."; also that the employer did not mention the incident as a reason for her termination
[ 80 Pa. Commw. Page 338]
and that he "refused to . . . give me any reason whatsoever." The employer admitted that in discharging the claimant he did not "pinpoint" this incident as a reason for his action.
The referee found as fact that the claimant was discharged for what the supervisor felt was disruptive behavior. She observed in discussion that there was no evidence of willful misconduct and granted benefits. On appeal the Unemployment Compensation Board of Review made factual findings of its own including that the claimant behaved as the employer described. The board concluded that this conduct constituted willful misconduct. The employer's testimony was of course sufficient support for the board's finding.
The appellant alleges error in the board's failure explicitly to state its reasons for issuing new findings and reversing the conclusion of the referee, citing Treon v. Unemployment Compensation Board of Review, 499 Pa. 455, 453 A.2d 960 (1982) and Wilson v. Unemployment Compensation Board of Review, 72 Pa. Commonwealth Ct. 504, 457 A.2d 164 (1983), as support of this contention. These cases hold that the board "may not . . . simply disregard findings made by the referee which are based upon consistent and uncontradicted testimony without stating its reasons for doing so." Treon, 499 Pa. at 461, 453 A.2d at 962. These authorities have no application here because the referee made no finding with regard to the crucial issue in the case: that of whether or not the incident described by the employer and denied by the claimant in fact occurred. As noted, the referee ...