Appeal from the Order of the Unemployment Compensation Board of Review in the case of In Re: Claim of Michael Duane Richner, No. B-228013.
James P. Johnson, for petitioner.
John W. English, Jr., Associate Counsel, with him, Charles G. Hasson, Acting Deputy Chief Counsel, for respondent.
Judges MacPhail and Doyle, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Doyle.
[ 95 Pa. Commw. Page 573]
This is an appeal from an order of the Unemployment Compensation Board of Review (Board) which reversed a decision of the referee and denied benefits to Michael Richner (Claimant) on the basis of willful misconduct.*fn1
Claimant worked as a bartender for Omar Investment Company (Employer) for one year and four months until his termination on November 7, 1983. Claimant's duties included wrapping quarters from a poker machine which had been installed in the barroom sometime after he began his employment. Claimant was dismissed for twice refusing direct orders to wrap these quarters. Subsequent to the first refusal, Employer inquired of Claimant whether
[ 95 Pa. Commw. Page 574]
he had a reason for refusing, and Claimant indicated his belief that by handling the quarters he would be participating in an illegal gambling activity.
Claimant was denied unemployment compensation benefits by the Office of Employment Security (OES). He appealed from the OES determination and a referee reversed the decision and granted benefits. Employer appealed the referee's decision to the Board which reversed the referee.
On appeal to this Court, Claimant argues that his refusal to wrap the quarters did not constitute willful misconduct. More specifically, he contends that the poker machine was an illegal gambling device, and that he therefore had good cause for refusing orders which would have required him to have contact with such a device.
Whether an employee's actions constitute willful misconduct is a question of law and is subject to our review.*fn2 Eisenhauer v. Unemployment Compensation Board of Review, 78 Pa. Commonwealth Ct. 341, 467 A.2d 650 (1983). A violation of an employer's policy is not willful misconduct if Claimant's action was justifiable and reasonable under the circumstances, but Claimant has the burden of showing good cause for such violation. Nunez v. Unemployment Compensation Board of Review, 84 Pa. Commonwealth Ct. 620, 480 A.2d 379 (1984).
In the present case, neither the referee nor the Board made a determination of the legality or illegality of the Employer's activities. The Board first determined ...