Kelly v. UCBR - Cmwlth. Court - June 24, 2011 - unpublished memorandum opinion
Claimant's questioning of an employer decision in a non-abusive, non-abrasive and non-vulgar (“[d]oes everyone hear this, I am against this.”) held not to be willful misconduct, even though it took place in a waiting room where there were some employer patients. See Luketic v. UCBR, 386 A.2d 1045 (Pa. Cmwlth. 1978), and Dincher v. UCBR, 502 A.2d 797 (Pa. Cmwlth. 1986).
Luketic - A poor attitude alone does not equal willful misconduct, especially where the claimant’s language was neither abusive nor vulgar and appeared justified in light of her experience. We refused to hold that rais[ing] in a non-abusive fashion what under the circumstances was a legitimate question … even coupled with a finding of a bad attitude, can reasonably be classified as willful misconduct under the [Law].
Dincher - The “mere challenge of the employer’s veracity absent vulgar and offensive language was not willful misconduct….” Dincher, 502 A.2d at 799. We also held that the “mere talking back to a supervisor absent abusive language is not willful misconduct for purposes of the [Law].” Id. at 800.
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This case is also summarized at the PLAN Legal Update http://planupdate.blogspot.com/, which is searchable.
The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent." 210 Pa. Code § 67.55. Citing Judicial Opinions.
