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KURT CARUSO v. COMMONWEALTH PENNSYLVANIA (12/27/88)

decided: December 27, 1988.

KURT CARUSO, 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 In Re: Claim of Kurt Caruso, No. B-261844.

COUNSEL

Michael F. Salisbury, O'Connor & Salisbury, for petitioner.

No appearance for respondent.

Scott F. Zimmerman, with him, John B. Bechtol, Reed, Smith, Shaw & McClay, for intervenor, Hammermill Paper Company.

Judges Doyle and McGinley, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge McGinley. Judge MacPhail did not participate in the decision in this case.

Author: Mcginley

[ 122 Pa. Commw. Page 352]

Kurt Caruso (Claimant) appeals an order of the Unemployment Compensation Board of Review (Board) denying benefits due to willful misconduct under the provisions of Section 402(e) of the Unemployment Compensation Law (Law).*fn1 We affirm.

Claimant was last employed by the Hammermill Paper Company (Employer) from April 16, 1976, at a final rate of $11.31 per hour and his last day of work was May 27, 1987. At or about 4:00 a.m. on May 27, 1987, Claimant, while intoxicated, appeared at the residence of a supervisor. The supervisor was working out of state at a plant that was embroiled in a labor dispute. The Board found that Claimant harassed and terrorized the supervisor's wife and small child. Also present at the home was the wife's brother-in-law, who was a fellow employee of Claimant. Claimant inquired in threatening tones of the brother-in-law whether he had become a "company man" instead of a "union man." Claimant was arrested near the home and charged with harassment, public drunkenness and disorderly conduct. Claimant was suspended on May 28, 1987, pending an investigation of the incident by Employer. The suspension was converted to a discharge effective June 4, 1987. Claimant ultimately pleaded guilty to charges of public drunkenness and disorderly conduct in connection with this incident. The charge of harassment was dismissed. (Notes of Testimony, July 9, 1987, (N.T.) at 20.)

[ 122 Pa. Commw. Page 353]

The Office of Employment Security (OES) denied Claimant's application for benefits and he took a timely appeal. Following a hearing, the Referee reversed the decision and awarded benefits, determining that Claimant was not ineligible pursuant to Section 402(e) of the Law, because Claimant had not harassed the supervisor's family, and because the incident was not connected with Claimant's work. At the hearing the Referee obtained permission of the parties to determine Claimant's eligibility under Section 3 of the Law, 43 P.S. ยง 752,*fn2 in anticipation that a Section 3 determination could become necessary, but he made no ruling under Section 3.

The Employer appealed to the Board, arguing that Claimant was ineligible pursuant to Section 402(e) of the Law. The Employer failed to preserve the issue of Claimant's ineligibility under Section 3.*fn3 The Board reversed the decision of the Referee, finding that Claimant's actions constituted willful misconduct because he had harassed the supervisor's family, and finding that Claimant's actions were work-related because they were related to a "brewing labor dispute."*fn4

Claimant argues that his actions did not constitute willful misconduct.*fn5 We are ...


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