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BERNARD FORTNA v. COMMONWEALTH PENNSYLVANIA (03/26/84)

decided: March 26, 1984.

BERNARD FORTNA, 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 Bernard W. Fortna, No. B-213919.

COUNSEL

Richard A. Katz, for petitioner.

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

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

Author: Doyle

[ 81 Pa. Commw. Page 136]

This is an appeal by Bernard W. Fortna (Claimant) of a decision and order of the Unemployment Compensation Board of Review (Board) which affirmed a referee's denial of benefits.

Claimant was employed as a welder by Champion Blower Forge, Inc. (Employer). On August 24, 1982, Claimant was discharged as a result of an incident in which he improperly restarted the electronic burning machine he was operating and damaged the machine, resulting in a loss to the Employer of approximately $60,000.

Claimant was denied benefits by the Office of Employment Security (OES) and, following a hearing, a referee affirmed the OES determination that Claimant had been discharged for willful misconduct and was therefore ineligible under Section 402(e) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. ยง 802(e). On appeal, the Board affirmed and petition for review by this Court followed.

Before this Court, Claimant argues that the Board erred as a matter of law*fn1 in determining that his action rose to the level of willful misconduct and in failing to consider Claimant's justification or cause for his action in light of the circumstances.

We have held that negligence can constitute willful misconduct if it "demonstrate[s] 'manifest culpability, wrongful intent, evil design or intentional and substantial disregard for the employer's interest or the employee's duties and obligations.'" Schappe v. Unemployment Compensation Board of Review, 38 Pa. Commonwealth Ct. 249, 253,

[ 81 Pa. Commw. Page 137392]

A.2d 353, 355-56 (1978) (quoting Kentucky Fried Chicken of Altoona, Inc. v. Unemployment Compensation Board of Review, 10 Pa. Commonwealth Ct. 90, 97, 309 A.2d 165, 168-69 (1973)) (emphasis added in Schappe). And while we have held that a single negligent act is insufficient to constitute willful misconduct, see Kneisler v. Unemployment Compensation Board of Review, 52 Pa. Commonwealth Ct. 70, 418 A.2d 774 (1980); Schappe, our case law emphasizes that each case is unique, irrespective of the number of accidents. See Trout v. Unemployment Compensation Board of Review, 65 Pa. Commonwealth Ct. 477, 442 A.2d 1209 (1982); Ingram v. Unemployment Compensation Board of Review, 47 Pa. Commonwealth Ct. 496, 408 A.2d 570 (1979); Schappe.

The record in the case at bar indicates that Claimant was adequately instructed in the proper start-up procedures for the burning machine and had previously been warned about carelessness in his operation of the machine. The record amply supports the conclusion that Claimant was negligent and that his negligence was indicative of a disregard for the Employer's interest and his ...


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