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MARIA E. HERNANDEZ v. COMMONWEALTH PENNSYLVANIA (05/10/84)

decided: May 10, 1984.

MARIA E. HERNANDEZ, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeal from the Order of the Unemployment Compensation Board of Review in the case of In Re: Claim of Maria E. Hernandez, No. B-209073.

COUNSEL

Walter S. Frankowski, Jr., Erickson, Ober & Ober, for petitioner.

Michael D. Alsher, Associate Counsel, with him, Richard L. Cole, Jr., Chief Counsel, for respondent.

Judges Williams, Jr., Barry and Colins, sitting as a panel of three. Opinion by Judge Barry. Judge Williams, Jr. dissents.

Author: Barry

[ 82 Pa. Commw. Page 354]

The case before us involves a petition for review filed by Maria E. Hernandez (Claimant) of a decision of the Unemployment Compensation Board of Review (Board) which affirmed a referee's determination that Claimant had been properly terminated from her employment as a nurse's aide due to behavior which constituted willful misconduct in accordance with Section

[ 82 Pa. Commw. Page 355402]

(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), Claimant thus was ineligible for unemployment compensation benefits.

Where, as here, the employer, who has the burden of proving willful misconduct, has prevailed below, this Court's scope of review is limited to determining whether or not the findings of fact are supported by substantial evidence and whether or not an error of law was committed. Palmer v. Unemployment Compensation Board of Review, 68 Pa. Commonwealth Ct. 388, 449 A.2d 126 (1982). The employer here is therefore entitled to the benefit of any inferences which can reasonably and logically be drawn from the evidence. Lake v. Unemployment Compensation Board of Review, 48 Pa. Commonwealth Ct. 138, 409 A.2d 126 (1979). A determination of what constitutes willful misconduct is a question of law to be resolved by this Court. Pennsylvania Engineering Corp. v. Unemployment Compensation Board of Review, 46 Pa. Commonwealth Ct. 305, 405 A.2d 1387 (1979).

Claimant had been employed as a nurse's aid by the Reading Convalescent Center, Reading, Pennsylvania, for a period of two consecutive years until May of 1982, but had been employed by this same employer for a total of ten years. Prior to Claimant's discharge, three residents of the convalescent home allegedly complained to a nurse that they had been abused or mistreated on several occasions during the past week by a nurse on duty during the night shift. The allegations included not having a bed pan emptied, having the call bell removed from the room, being told not to ring for the remainder of the night, and being hit in the face. The day after the statements were written by a nurse and signed by the patients who had

[ 82 Pa. Commw. Page 356]

    complained, Claimant was scheduled to have a physical examination at the convalescent home. At that time and without advance notice to Claimant, the three patients were taken to the area where Claimant was waiting to undergo the examination and they identified her as the nurse responsible for the mistreatment which they received.

On the same day, Claimant was called to the office of the Director of Nursing for a hearing. Present at this hearing were Claimant, the Director of Nursing, the Assistant Director of Nursing, and Assistant Administrator, and Claimant's union representative. At this hearing, Claimant was confronted with the allegations made by the patients and the statements prepared by a nurse based on information received from the patients. Claimant denied that she had mistreated or abused the ...


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