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GARY KEAY v. COMMONWEALTH PENNSYLVANIA UNEMPLOYMENT COMPENSATION BOARD REVIEW (12/14/88)

decided: December 14, 1988.

GARY KEAY, 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 Gary Keay, No. B-260815.

COUNSEL

Thomas F. Putinsky, for petitioner.

John Herzog, Assistant Counsel, with him, Clifford F. Blaze, Deputy Chief Counsel, for respondent.

Judges Doyle and McGinley, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge McGinley.

Author: Mcginley

[ 122 Pa. Commw. Page 117]

Gary Keay (Keay) appeals from a decision of the Unemployment Compensation Board of Review (Board) which affirmed the Referee's denial of unemployment compensation benefits due to willful misconduct pursuant to Section 402(e) of the Unemployment Compensation Law (Law).*fn1 We reverse.

[ 122 Pa. Commw. Page 118]

Keay was employed as a roofer with Voegele Roofing Co., Inc. (Employer) from April 20, 1980, until his last day of work on December 5, 1986. On that day he consumed beer during his lunch period. Three other employees also consumed beer. Keay's foreman was present at the time but did not raise an objection. All four of the employees were terminated as a result of this incident, but Keay was the only employee of the four who was not reinstated. The Office of Employment Security denied Keay's application for benefits. The Referee affirmed the denial of benefits, and the Board affirmed the Referee's decision. Keay appeals from the Board's decision.

Keay raises two issues: 1) that certain of the Board's findings are not supported by substantial evidence; 2) and that his conduct does not constitute willful misconduct and that he had good cause for his actions.

Our scope of review is well settled. We are limited to affirming the Board's decision unless there was an error of law, a party's constitutional rights were violated, or if the necessary findings of fact are not supported by substantial evidence. Estate of McGovern v. State Employees' Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986).

Keay challenges two*fn2 of the Board's findings. Finding No. 8 states that: "The Claimant's services were terminated by the employer for consuming alcoholic beverages during a lunch period and for leaving the employer's trailer when Claimant was told to wait there."

[ 122 Pa. Commw. Page 119]

Keay argues that there was no evidence to support the second half of the finding. The Board concedes the lack of evidence to support that latter half of the finding, but submits that because this half of the finding is not ...


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