Kilpatrick v. Commonwealth, Unemployment Compensation Board of Review

429 A.2d 133, 59 Pa. Commw. 201, 1981 Pa. Commw. LEXIS 1445

• Court: Commonwealth Court of Pennsylvania
• Decided: May 7, 1981
• Docket: Appeal, No. 2243 C.D. 1979
• Status: Published

Opinion

Opinion by

Judge Williams, Jr.,

Claimant appeals to this Court to reverse the decision of the Unemployment Compensation Board of Review (Board), which upheld a referee’s determination that claimant is not entitled to benefits under Section 402(e) of the Unemployment Compensation Law (Act), Act of December 5,1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e), for willful misconduct. We affirm tbe order of tbe Board.

Claimant had been employed as a fabricator by tbe Westingbouse Electric Company for over nineteen years, wben be became involved in an incident on bis employer’s premises which necessitated bis hospitalization. Tbe Board found tbat on May 16,1979, at approximately 10:30 P.M., tbe claimant participated in an altercation witb another employee.¹ Immediately thereafter, tbe claimant, wben questioned by bis supervisor, stated tbat tbe fellow employee and be bad bad a disagreement, and bad decided to step outside to settle tbe matter.²

Tbe employer suspended claimant for five days, later changing tbe suspension to a discharge for violating tbe employer’s rules against fighting and disorderly conduct on tbe premises.

At tbe bearing, claimant testified tbat be bad not stepped outside to fight, but rather to get a breath of fresh air, and tbat bis injury was caused by a blow from an unseen assailant. He stated tbat be remembered nothing from tbe moment be received tbe blow until be woke up in tbe hospital, tbat be has no recollection of any conversation witb tbe supervisor concerning a fight.

Our scope of review

in tbe absence of fraud, is confined to questions of law and a determination of whether tbe findings of tbe Unemployment Compensation Board of Review are supported by tbe evidence, leaving to tbe Board questions of credibility and weight - of tbe evidence and giving to tbe prevailing party tbe benefit of any favorable inferenees which can reasonably and logically be drawn therefrom.

Horace W. Longacre, Inc. v. Unemployment Compensation Board of Review, 12 Pa. Commonwealth Ct. 176, 178, 316 A.2d 110, 111 (1974).

Testimony in this case was definitely conflicting. Claimant’s supervisor testified for the employer, and claimant and another employee, Mr. Trull, testified in claimant’s behalf. Mr. Trull’s testimony corroborated certain portions of claimant’s testimony, and contradicted certain parts of the supervisor’s testimony. It is quite clear, however, that only claimant and the supervisor were present at the conversation wherein claimant allegedly admitted that he had been fighting. The Board did not disregard the conflict; indeed, it noted in its decision that “[t]here is a conflict in the testimony which the Board has determined to resolve in favor of the employer. ’ ’

Willful misconduct has been repeatedly defined by this Court as an act of wanton or willful disregard of the employer’s interests, a deliberate violation of the employer’s rules, a disregard of the standards of behavior which the employer has a right to expect of an employee, or negligence indicating an intentional disregard of the employer’s interests or the employee’s duties and obligations to the employer. Murraysville Telephone Co. v. Unemployment Compensation Board of Review, 41 Pa. Commonwealth Ct. 35, 398 A.2d 250 (1979). We have previously held that participation in a fight during working hours is willful misconduct, whether it is in violation of a stated company policy or not, since at minimum it rises to the level of a disregard of justifiably expected standards of behavior and of the employer’s interests. Unemployment Compensation Board of Review v. Vojtas, 23 Pa. Commonwealth Ct. 431, 351 A.2d 700 (1976). Here, fighting was prohibited by the most stringent company rules, which indicate the possibility of immediate discharge for snch an offense.

In a termination for willful misconduct, the burden of proving the misconduct is on the employer. Gallagher v. Unemployment Compensation Board of Review, 36 Pa. Commonwealth Ct. 599, 388 A.2d 785 (1978). The only evidence introduced by the employer to establish the fighting which constitutes the willful misconduct is the injured condition of the claimant coupled with his alleged statement that he had been fighting. Since the Board accepted the employer’s testimony as true, we must determine whether the evidence will sustain the findings.

Claimant directs the Court’s attention to Walker v. Unemployment Compensation Board of Review, 27 Pa. Commonwealth Ct. 522, 527, 367 A.2d 366, 370 (1976), in which we said that

hearsay evidence admitted without objection will be given its natural probative effect and may support a finding of the Board, if it is- corroborated by any competent evidence in the record, but a finding of fact based solely on hearsay will not stand.

However, an admission of a party is an exception to the hearsay rule. 1 Henry, Pennsylvania Evidence, §71 et seq. See also, Unemployment Compensation Board of Review v. Houp, 20 Pa. Commonwealth Ct. 111, 340 A.2d 588 (1975), in which this Court approved the admission into evidence of a written admission, because it was a commonly acknowledged exception to the hearsay rule.

Since the Board accepted as credible the employer’s statement of claimant’s admission, that admission, not being hearsay, is competent to sustain a finding that claimant was fighting.

We therefore affirm the decision and order of the Board.

Order

And Now, this 7th day of May, 1981, the decision and order of the Unemployment Compensation Board of Review, Decision No. B-176478, is hereby affirmed.

Judge Wilkinson, Jr. did not participate in the decision in this case.

1 Finding number 2.

2 Finding number 3.