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SARA M. KOWAL v. COMMONWEALTH PENNSYLVANIA (07/25/86)

decided: July 25, 1986.

SARA M. KOWAL, 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 Sara M. Kowal, No. B-205016-C.

COUNSEL

Elliot A. Strokoff, Handler, Gerber, Johnston, Strokoff & Cowden, for petitioner.

Samuel H. Lewis, Associate Counsel, with him, Paul E. Baker, Acting Deputy Chief Counsel, for respondent.

Judges Barry and Palladino, and Senior Judge Rogers, sitting as a panel of three. Opinion by Judge Barry. Judge Palladino dissents.

Author: Barry

[ 99 Pa. Commw. Page 235]

This appeal results from an order of the Unemployment Compensation Board of Review (Board) which reaffirmed its prior order affirming a referee's denial of benefits to the claimant, Sara M. Kowal (claimant).

After claimant appealed from the Board's initial decision, this Court, in an opinion by Judge Craig, remanded the case for findings on the issue of justifiable provocation for claimant's conduct.*fn1 That conduct had formed the basis of claimant's termination and the Board's subsequent denial of benefits on the grounds of willful misconduct. On remand, the Board found that claimant's conduct was not justifiable, and hence reaffirmed its earlier denial of benefits.*fn2 From that reaffirmation the claimant has again appealed.

[ 99 Pa. Commw. Page 236]

The facts are undisputed. The claimant was employed with Susquehanna Employment and Training Corporation (employer) as a monitor of government-funded programs. At a meeting with the executive director of the employer, attended by claimant and two other such employees, tensions grew high as the executive director expounded in a loud and animated voice on various complaints regarding the employees' work attitude. The chief problem centered around the employees' alleged failure to smile enough at the office, though the executive director also covered apparently unrelated subjects in the course of the meeting.

There is no dispute but that the three employees were being severely harangued throughout the meeting. As noted in our earlier consideration, "meeting attendees . . . testified that the executive director was screaming, speaking loudly, and pointing during the meeting."*fn3 This conduct was, as explained by the executive director, undertaken in an attempt to "intimidate" the employees into giving "feedback." (N.T. at 5).

After responding to certain rhetorical questions, claimant was directly and repeatedly queried, in a loud voice, whether she liked her job. At this point claimant "threw a writing tablet at [him] and told him, 'I hate working here. Shove it up your ass[.]'";*fn4 claimant then left the room. Although claimant attempted to resume her duties as usual the next day, she was fired for her outburst. A referee denied benefits and, as recounted above, the Board affirmed, concluding that the outburst was unattended by any justifiable provocation which would obviate a finding of willful misconduct. See Goins v. Unemployment Compensation Board of Review, 67 Pa. Commonwealth Ct. 22, 445 A.2d 1339 (1982).

[ 99 Pa. Commw. Page 237]

Determination of whether an employee's conduct constitutes willful misconduct is ultimately a question of law, subject to our review. Bivins v. Unemployment Compensation Board of Review, 79 Pa. Commonwealth Ct. 643, 470 A.2d 662 (1984). And, calling to mind in addition that the burden is on the employer, who here has prevailed before the Board, our scope of review is limited to determining whether the Board's findings are supported by substantial evidence or whether an error of law has been committed. Brant v. Unemployment Compensation Board of Review, 83 Pa. Commonwealth Ct. 373, 477 A.2d 596 (1984). Claimant ...


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