Opinion
Argued October 1, 1979
October 23, 1979.
Unemployment compensation — Wilful misconduct — Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897 — Obscene language.
1. An employe discharged for using unprovoked obscene and vulgar language to a superior is properly held to have been discharged for wilful misconduct precluding his receipt of benefits under the Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897. [557]
Argued October 1, 1979, before Judges CRUMLISH, JR., WILKINSON, JR. and MacPHAIL, sitting as a panel of three.
Appeal, No. 1996 C.D. 1978, from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Howard King, No. B-161641.
Application to the Bureau of Employment Security for unemployment compensation benefits. Application denied. Applicant appealed to the Unemployment Compensation Board of Review. Denial affirmed. Applicant appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Andrew Jackson, with him Barbara E. Sarkin, and Winer and Einhorn, for petitioner.
Charles G. Hasson, Assistant Attorney General, with him Edward G. Biester, Jr., Acting Attorney General, for respondent.
The Bureau of Employment Security, the Referee, and the Unemployment Compensation Board of Review have all ruled that the claimant is ineligible for unemployment compensation benefits by reason of Section 402(e) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess. P.L. (1937) 2897, as amended, 43 P. S. § 802(e), i.e. willful misconduct. We affirm.
Claimant had worked as an accountant for Triangle Publications, Philadelphia, Pa. for four years and eleven months. His record for absenteeism and punctuality had been somewhat less than perfect. His superior had been keeping a current written record on his attendance. On March 1, 1978 claimant called in to request a day of vacation to take his wife to the hospital. On March 2, 1978 his superior had a written memorandum placed on the desk of each of the five members of this department reminding them "of the employer's rules regarding vacation time, absences and the scheduled working hours." On March 3rd claimant personally returned his copy of the memorandum to the supervisor with obscene comments written thereon. In a conversation with his supervisor he used profanity in registering his objections to the memorandum. The supervisor stated he would talk with one Mr. Fox about the matter. Claimant responded "I hate that goddam Jew bastard too."
It is claimant's position that the employer has not carried its burden of proving willful misconduct. A review of the record easily convinces us otherwise.
Since the decision of our Superior Court in Miller Unemployment Compensation Case, 196 Pa. Super. 393, 175 A.2d 119 (1961) and the earlier cases therein cited down through our decisions in Fields v. Unemployment Compensation Board of Review, 7 Pa. Commw. 200, 300 A.2d 310 (1973) and on to Unemployment Compensation Board of Review v. Tumolo, 25 Pa. Commw. 264, 360 A.2d 763 (1976) the law in Pennsylvania has been perfectly clear that unprovoked obscene and vulgar language, even in a single instance resulting in discharge, may be the basis for a decision that a claimant is ineligible for unemployment compensation benefits under section 402(e). Judge MENCER's comment in Fields is equally applicable here: "A reading of the record reveals that appellant's vulgarity was unjustified, unprovoked, unnecessary and uncalled for under the circumstances. This constituted willful misconduct justifying a denial of benefits under Section 402(e) of the Unemployment Compensation Law, 43 P. S. § 802(e)."
Supra at 203, 300 A.2d at 311.
Accordingly, we will enter the following
ORDER
AND NOW, October 23, 1979, the order of the Unemployment Compensation Board of Review dated July 24, 1978, decision No. B-161641, affirming the Referee's determination that claimant is ineligible for benefits is affirmed.