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December 4, 1997


Appealed From No. B-359012. State Agency, Unemployment Compensation Board of Review.

Before: Honorable Dan Pellegrini, Judge, Honorable Jim Flaherty, Judge, Honorable Charles P. Mirarchi, Jr., Senior Judge. Opinion BY Judge Flaherty. *fn1

The opinion of the court was delivered by: Flaherty


FILED: December 4, 1997

Nichole Arnold (Claimant) petitions for review from an order of the Unemployment Compensation Board of Review (Board) affirming the decision of the referee denying her unemployment compensation benefits pursuant to Section 402(e) of the Unemployment Compensation Law (Law) *fn2 for willful misconduct. We reverse.

The facts of this case are not in dispute. Claimant was employed as a part-time crew person at Wendy's, a fast food franchise owned by the Wenbling Corporation (Employer). On November 7, 1996, at approximately 7:30 p.m., Claimant had finished working her shift, clocked out, and decided to stay at the restaurant to eat with a co-worker. She remained dressed in part of her company uniform identifying her as a Wendy's employee. *fn3 Claimant's manager asked her if she would run an errand for her as a favor *fn4 and Claimant agreed to do it when she finished eating.

After finishing her meal around 8:30 p.m. and upon exiting the restaurant with her co-worker to run the errand, she and her co-worker were almost struck by a car driven by a customer who was driving in the restaurant's drive-thru lane. The customer stopped in time, and as he began driving away, Claimant stated to her co-worker, "What an asshole." The customer heard this comment and went inside the restaurant to report it to Claimant's manager. Claimant was subsequently discharged by her manager for calling the customer a vulgar name.

Following her discharge, Claimant applied for unemployment compensation benefits which were denied by the Office of Employment Security under Section 402(e) of the Law for willful misconduct. *fn5 Claimant appealed and after a hearing was held, the referee also denied her benefits on the basis that she admitted the incident took place, and that conduct showed a reckless disregard for the Employer's best interests. Claimant filed an appeal with the Board which affirmed the referee's decision because Claimant had not provided an adequate justification for her actions. This appeal by Claimant followed. *fn6

Claimant contends that the Board erred in finding that her conduct rose to the level of willful misconduct because she only made the vulgar remark after she had been sufficiently provoked when nearly hit by the customer's car. We agree and are guided by our holdings in Horace W. Longacre, Inc. v. Unemployment Compensation Board of Review, 12 Pa. Commw. 176, 316 A.2d 110 (Pa. Commw. 1974) and Kowal v. Unemployment Compensation Board of Review, 99 Pa. Commw. 234, 512 A.2d 812 (Pa. Commw. 1986). In those cases this court held that offensive language directed by an employee to an employer, if sufficiently provoked or de minimis, will not constitute willful misconduct. We agree with the Claimant that the same rationale should apply in this case where her use of offensive language, de minimis in nature, was provoked by the actions of a customer.

In Longacre, we found that an employee had been sufficiently provoked and not guilty of willful misconduct when she told her supervisor to "go to hell" after the supervisor took her by the arm in an attempt to restrain her from going on a break. Similarly, in Kowal, we held that an employee was not guilty of willful misconduct where a supervisor had harangued and intimidated an employee throughout a meeting and she told the supervisor, "I hate working here. Shove it up your ass." In both of those cases, this court found that the claimants were provoked by their supervisors and that the language used by them was de minimis. Although this case involves provocative behavior by a customer rather than a supervisor, we are nonetheless guided by our decisions in those cases.

In this case, Claimant instinctively reacted to almost being hit by a car. Like the individuals in Longacre and Kowal, Claimant's actions arose after having been sufficiently provoked. Whether or not the customer intentionally tried to harm Claimant is irrelevant. Claimant instinctively responded to a life-threatening situation.

Additionally, Claimant's comment was not directed at the customer. Rather, she directed the comment to her colleague. There is nothing in the record to indicate that Claimant voiced her comment in such a tone by which she intended that the customer would overhear it. Although her statement was unsavory, it was de minimis and not directed at the customer but to her friend.

Under the circumstances of this case, we conclude that Claimant's conduct did not amount to willful misconduct. Accordingly, the ...

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