Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Christine A. Tongel, No. B-221381.
Alden Earl Bowen, Miller & Bowen, for petitioner.
Charles D. Donahue, Associate Counsel, with him, Charles G. Hasson, Acting Deputy Chief Counsel, for respondent.
President Judge Crumlish, Jr., Judge Colins, and Senior Judge Blatt, sitting as a panel of three. Opinion by President Judge Crumlish, Jr.
[ 93 Pa. Commw. Page 525]
A referee's decision denying Christine A. Tongel benefits for willful misconduct*fn1 was upheld by the Unemployment Compensation Board of Review. She appeals; we reverse.
Tongel, a dispatcher for Wells Fargo Guard Services at the Allegheny Center Mall in Pittsburgh, was discharged for improper conduct and for allowing an unauthorized person into the security control center after her supervisor reported observing her being given a back rub by, and later embracing, a male police officer while she was on duty. The referee found, inter alia, that (1) the incident with the police officer did occur, (2) Wells Fargo's rules only permitted police officers to be in the security control center on official business, and (3) the police officer
[ 93 Pa. Commw. Page 526]
was not in the security control center on official business. The referee concluded that Tongel's actions constituted willful misconduct and the Board affirmed.
Where the employer, who has the burden of proving that the claimant's discharge was for willful misconduct, prevails below, our scope of review is limited to determining whether an error of law was committed and whether any necessary finding of fact is unsupported by substantial evidence. Jones v. Unemployment Compensation Board of Review, 74 Pa. Commonwealth Ct. 572, 460 A.2d 412 (1980). Whether a claimant's actions rise to the level of willful misconduct is a question of law subject to our review. Thompson v. Unemployment Compensation Board of Review, 28 Pa. Commonwealth Ct. 591, 368 A.2d 1386 (1977).
Tongel contends that her admittance of the police officer into the security control center does not rise to the level of willful misconduct because she was never informed that police officers were only permitted there while on official business. We agree.
Where the employer seeks to establish willful misconduct in the nature of a work rule violation, it must prove both the existence of the rule and that the claimant violated it. Albertson v. Unemployment Compensation Board of Review, 69 Pa. Commonwealth Ct. 394, 452 A.2d 275 (1982). The employer must present evidence that the claimant intentionally or deliberately violated the rule. See Bucher v. Unemployment Compensation Board of Review, 76 Pa. Commonwealth Ct. 282, 463 A.2d 1241 (1983). Our review of the record reveals no evidence that Tongel knew or was on notice that police officers were to be permitted in the security control center ...