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DENNIS VIGLINO v. COMMONWEALTH PENNSYLVANIA (05/05/87)

decided: May 5, 1987.

DENNIS VIGLINO, 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 Dennis Viglino, No. B-247601.

COUNSEL

Mark L. Newman, for petitioner.

No appearance for respondent.

James A. Matthews, Jr., with him, Thomas S. Giotto, Morgan, Lewis & Bockius, for intervenor, Consolidated Freightways, Inc.

Judges Craig and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri.

Author: Barbieri

[ 105 Pa. Commw. Page 618]

Dennis Viglino (Claimant) appeals an order of the Unemployment Compensation Board of Review (Board) which affirmed a referee's decision finding him ineligible for unemployment compensation benefits on account of willful misconduct.*fn1

Claimant was employed as a dockman with Consolidated Freight when he was discharged for insubordination. We granted the employer's petition for leave to intervene.

On October 24, 1985, Claimant directed a vulgar and derogatory remark towards his dock foreman as they were passing each other on the dock. The foreman requested that Claimant repeat the remark, which he did. An altercation ensued, the details of which are characterized by conflicting testimony.

The Board issued its own findings which were substantially similar to those of the referee. Both the referee and the Board found that the Claimant made the vulgar remark and that the Claimant refused to accompany the foreman to the assistant terminal manager's office because he was on his lunch break. However, the Board did not adopt the referee's finding that after the Claimant repeated the vulgar remark the foreman shoved him and then hit him twice when he refused to go see the assistant terminal manager. Rather, the Board found that, responding to the vulgar remark, the foreman told Claimant to go to the assistant terminal

[ 105 Pa. Commw. Page 619]

    manager's office. It then found that Claimant slammed the foreman against the wall and the foreman punched the Claimant in the stomach in self-defense.

Both the referee and the Board found claimant's separation from employment to be for willful misconduct in that the Claimant was insubordinate to the foreman and his ...


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