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EDWIN RIVERA v. COMMONWEALTH PENNSYLVANIA (06/05/87)

decided: June 5, 1987.

EDWIN RIVERA, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeal from the order of the Unemployment Compensation Board of Review in case of In Re: Claim of Edwin Rivera, No. B-237262.

COUNSEL

Jeffrey L. Greenwald, Lehigh Valley Legal Services, for petitioner.

Jonathan Zorach, Associate Counsel, with him, Paul E. Baker, Acting Deputy Chief Counsel, for respondent.

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

Author: Barry

[ 106 Pa. Commw. Page 431]

Claimant, Edwin Rivera, seeks review of an order of the Unemployment Compensation Board of Review (Board) which affirmed a referee's decision denying his claim for unemployment compensation. We affirm.

Claimant worked in J. G. Furniture Systems, an upholstery plant. His job included the use of staple guns, capable of shooting nails (called "brads"), which were

[ 106 Pa. Commw. Page 432]

    used in the manufacturing process. On the day in question, one Christian Heidlemark (Heidlemark), a fellow employee, shot claimant with such a gun. He was told by claimant to stop, but he again shot claimant three times in his chest, whereupon claimant shot Heidlemark once in the leg. An altercation followed and claimant was pushed over a skid by Heidlemark. The employer discharged both for fighting. The rules of the company, which included a rule against fighting, were displayed on bulletin boards throughout the plant.

An unemployed worker can be denied benefits for willful misconduct connected with his work pursuant to Section 402(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). Willful misconduct is established when the employee's behavior constitutes a "wanton and willful disregard of an employer's interest, a deliberate violation of the employer's rules, a disregard of expected standards of behavior, . . . or an intentional disregard of the employer's interest or the employee's duties and obligations to the employer." Kronstadt v. Unemployment Compensation Board of Review, 88 Pa. Commonwealth Ct. 318, 489 A.2d 310 (1985); Harris v. Unemployment Compensation Board of Review, 67 Pa. Commonwealth Ct. 537, 447 A.2d 1060 (1982).

The employer's representative testified that fighting with nail guns was considered a serious offense, "because even though they were small nails, they could take out an eye if it caught the person at just the right angle, through the safety glasses or behind the safety glasses." It endangered other employees in the area.

The referee found that claimant's conduct constituted willful misconduct and, because he could have retreated from the other employee, his ...


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