Reading S.D. v. UCBR ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Reading School District, :
Petitioner :
:
v. : No. 1644 C.D. 2019
: Submitted: August 19, 2022
Unemployment Compensation :
Board of Review, :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE DUMAS FILED: January 20, 2023
Reading School District (Petitioner) has petitioned this Court to review
the adjudication of the Unemployment Compensation Board of Review (Board),
which affirmed a Referee’s decision that Tsehay A. Jackson (Claimant) was eligible
for unemployment compensation under the Unemployment Compensation Law
(Law).1 Because the Board erred as a matter of law by holding that Claimant was
justifiably provoked, we reverse the Board.
I. BACKGROUND2
Claimant was a full-time teacher with Petitioner from 2008 to 2019. In
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §§
751-919.10.
2
Except as stated otherwise, we adopt this background from the Referee’s Decision/Order
and the Board’s Order, which adopted the Referee’s conclusions and added a single finding of fact.
See Referee’s Decision/Order, 7/31/19; Board’s (Bd.) Order, 10/30/19. We add that we review
the record in the light most favorable to the prevailing party and give that party the benefit of all
logical and reasonable inferences. Begovic v. Unemployment Comp. Bd. of Rev., 234 A.3d 921,
929 n.6 (Pa. Cmwlth. 2020).
2019, Claimant was at work and “experienced a personal and embarrassing mishap
in the restroom between classes.” Referee’s Decision/Order at 1 (unpaginated). The
parties dispute some or all of the following, but the Board found that Claimant was
upset and discussing the mishap with two female security guards when the janitor
interjected himself into the discussion. Id. at 2. A verbal exchange ensued between
Claimant and the janitor, with the Board finding that the janitor made a crude remark
that resulted in Claimant shoving the janitor. Id.; see also Notes of Testimony (N.T.)
Hr’g, 7/26/19, at 21.3 A video camera recorded the incident.4
As a result of this incident, Petitioner suspended Claimant, pending
further investigation. Referee’s Decision/Order at 2. While on suspension, Claimant
emailed Petitioner from her personal email address, objecting to her suspension and
alleging “that she had been told” the janitor bought drugs from a student. Id.; accord
Hr’g Ex. E-5 (reflecting the email, which stated, “I don’t deserve to sit for a
Loudermill Hearing related to the janitor with whom I had an altercation (who I’ve
been told is buying drugs from a student).”).5
3
Per Claimant, the janitor said, “I can clean that up. I can clean that up real good with my
tongue.” N.T. Hr’g, 7/26/19, at 21; accord Bd.’s Order at 1.
4
Although the Board did not address it, the record is undisputed that the janitor lost his
balance but remained standing. N.T. Hr’g at 7, 15. Petitioner apparently had the statements of the
janitor and other eyewitnesses, but Petitioner elected not to present their statements. See, e.g., id.
at 4. Finally, the video was not transmitted to this Court as part of the certified record. See
generally Pa.R.A.P. 1541, 1921.
5
A Loudermill hearing permits a public education employee an opportunity to respond
prior to termination. See Medina v. Harrisburg Sch. Dist., 273 A.3d 33, 36 n.4 (Pa. Cmwlth. 2022)
(citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985)). Petitioner’s Loudermill
Hearing notice stated that it was Claimant who verbally confronted and shoved the janitor. Pet’r’s
Notice, 4/30/19, at 1. The notice also stated that two security guards, students, and other teachers
were present. Id. at 1-2; see also N.T. Hr’g at 5 (stating that the video depicts an administrator
separating Claimant and the janitor). The Loudermill hearing transcript was not part of the record.
At the unemployment compensation hearing, the parties discussed Claimant’s testimony at
the Loudermill hearing. Claimant acknowledged that at the Loudermill hearing, she stated that she
2
Petitioner charged Claimant with violating Board Policy 417
(Conduct/Disciplinary Procedures), the Employee Handbook (Conduct Standards
and Discipline, Workplace Violence, and Whistleblower Protection), and the then-
existing versions of Sections 235.4 to .5 of the Code of Professional Practice and
Conduct for Educators (Code). Hr’g Ex. E-7; see also 22 Pa. Code §§ 235.4-.5
(2020).6 Essentially, the Board Policy and Employee Handbook prohibit fighting
and other acts of violence. Section 235.4 of the Code lists “behaviors and attitudes”
by which “professional educators . . . are expected to abide . . . .” 22 Pa. Code §
235.4. Section 235.5 of the Code states that “[i]ndividual professional conduct
reflects upon the practices, values, integrity and reputation of the profession.” Hr’g
Ex. E-8. Petitioner subsequently fired Claimant.
Claimant applied for, but was initially denied, unemployment
compensation benefits under Section 402(e) of the Law. Notice of Determination,
6/18/19. Claimant appealed to the Referee, who held a hearing at which only
Claimant and Petitioner’s compliance officer testified. See generally N.T. Hr’g.
Petitioner showed the silent video footage of the incident. Id. at 5-6.
The Referee ruled in Claimant’s favor, finding that Claimant was
provoked and had good cause for shoving the janitor. Referee’s Decision/Order at
2. The Referee also held that Claimant’s email was not willful misconduct. Id.
Petitioner timely appealed to the Board, which affirmed the Referee and added an
additional finding of fact quoting the janitor’s crude remark. Bd.’s Order at 1.
could not remember what the janitor told her. N.T. Hr’g at 26-27. Claimant justified her statement
by explaining that she was “very embarrassed” and humiliated. Id. at 27.
6
Petitioner’s notice also charged Claimant with violating 18 Pa.C.S. §§ 2709(a)(1)
(harassment), and 4904 (unsworn falsification to authorities), which are criminal statutes outside
of Petitioner’s charging authority. Hr’g Ex. E-7. The record reflects no criminal charges were
filed.
3
Petitioner timely filed a petition for review with this Court.
II. ISSUES7
On appeal, Petitioner raises two issues. First, Petitioner claims that the
record does not support several of the Board’s findings of fact. Pet’r’s Br. at 2-4.
Specifically, Petitioner claims no record support for the following: the janitor
interjected himself into the discussion; the janitor’s crude remark; Claimant was
upset and shoved the janitor; and the email required Claimant to meet with the janitor
at the Loudermill hearing. Id. Second, Petitioner argues that the Board erred as a
matter of law by finding that Claimant’s shove of the janitor and email were not acts
of willful misconduct. Id. at 4-6, 18-19.
III. DISCUSSION
A. Challenges to the Findings of Fact
Before summarizing Petitioner’s arguments, we state the Referee’s
findings of fact at issue, which were adopted by the Board. First, Claimant “went to
a lobby area and was discussing her issue with two female security guards, when the
janitor interjected himself into the discussion. After learning of the problem, the
janitor made a crude remark to [Claimant], as if to make light and humiliate
[Claimant].” Referee’s Decision/Order at 2. Second, Claimant “became upset with
the janitor’s response and shoved him.” Id. Third, “[w]hile still on suspension, . . .
[C]laimant sent an email to the employer, protesting the fact that she had to
participate in a hearing with the janitor with whom she had the confrontation. In this
email, . . . [C]laimant indicated that she had been told that this janitor had been
7
We review the Board’s decision to determine “whether an error of law was committed,
constitutional rights were violated, or necessary findings of fact are supported by substantial
evidence.” Frazier v. Unemployment Comp. Bd. of Rev., 833 A.2d 1181, 1183 n.4 (Pa. Cmwlth.
2003) (citation omitted). We may also cite unreported opinions as persuasive authority. 210 Pa.
Code § 69.414(a).
4
buying drugs from a student.” Id.
1. Arguments
On appeal, Petitioner argues the video establishes that Claimant did not
speak with the two female guards but directly approached the janitor, where she
“berated” the janitor for 13 seconds before shoving him. Pet’r’s Br. at 13.8 Petitioner
argues that the Board’s finding that the janitor made a crude remark is based solely
“upon [Claimant’s] unsupported testimony” and that Claimant “provided no
evidence or corroborating witnesses.” Id. at 14. Petitioner reasons that Claimant
could have testified as to the janitor’s remark at her Loudermill hearing. Id. at 15.
Petitioner opines that Claimant’s failure to do so undermines her credibility. Id.
With respect to the Board’s findings regarding the email, Petitioner
argues that the email did not state that Claimant had to meet with the janitor. Id. at
16. Petitioner also contends that the Board’s conclusion, i.e., Claimant repeated a
rumor and did not directly accuse the janitor of buying drugs, is a factual distinction
unsupported by the record. Id. at 17. Petitioner claims that the Board should have
concluded that Claimant “engaged in reckless rumor mongering about a co-worker
for the expressed purpose of impugning his character.” Id. at 18.
2. Discussion
We view the record in the light most favorable to the prevailing party,
including the benefit of all logical and reasonable inferences, to determine if
substantial evidence exists for the Board’s conclusion. Begovic, 234 A.3d at 929
n.6. “Substantial evidence is such relevant evidence that a reasonable mind might
8
The video, according to Petitioner, also refutes Claimant’s testimony that the janitor
“made ‘gestures’” before Claimant shoved him. Pet’r’s Br. at 15. Claimant counters that the video
lacks audio and that Petitioner did not call a single witness to contradict Claimant’s testimony,
including the two guards and the janitor. Claimant’s Br. at 9-10.
5
accept as adequate to support a conclusion.” Woodring v. Unemployment Comp. Bd.
of Rev., 284 A.3d 960, 964 (Pa. Cmwlth. 2022) (citation omitted). “Substantial
evidence” does not necessarily require eyewitness testimony because a factfinder
may resolve an unemployment compensation claim based solely on circumstantial
evidence. See Blicha v. Unemployment Comp. Bd. of Rev., 876 A.2d 1077, 1082
(Pa. Cmwlth. 2005). As long as substantial evidence supports the Board’s findings
of fact, it is immaterial that the record could support a contrary finding. Morgan v.
Unemployment Comp. Bd. of Rev., 108 A.3d 181, 185 (Pa. Cmwlth. 2015) (en banc).
In addition to resolving conflicts of evidence, the Board also resolves witness
credibility. Lowman v. Unemployment Comp. Bd. of Rev., 235 A.3d 278, 286 n.8
(Pa. 2020); see generally Peak v. Unemployment Comp. Bd. of Rev., 501 A.2d 1383,
1389 (Pa. 1985) (rejecting argument that Referee should have the exclusive power
to resolve credibility). Finally, it is well settled that an unsupported finding of fact
that is unnecessary to the adjudication “constitutes harmless error.” Borough of
Schuylkill Haven v. Prevailing Wage Appeals Bd., 6 A.3d 580, 585 (Pa. Cmwlth.
2010) (Borough).
Here, the Board considered the video and testimony of all of the
witnesses. See generally N.T. Hr’g. Viewing the record, as we must, in Claimant’s
favor, the video apparently was inconclusive at best as to whether Claimant spoke
with the two female guards and whether the janitor made a crude remark to Claimant.
See Woodring, 284 A.3d at 964. Because the law does not require Claimant to
present corroborative testimony or evidence, we disagree with Petitioner’s criticism
of the Board’s reliance on Claimant’s testimony alone. See Blicha, 876 A.2d at
1082. Finally, with respect to Petitioner’s argument that Claimant could have
testified about the janitor’s statement at the Loudermill hearing, such an argument
6
goes to her credibility, which is left to the Board’s discretion. See Lowman, 235
A.3d at 286 n.8.
Next, we address whether the record supports the Board’s finding that
Claimant’s email protested that she “had to participate in a hearing with the janitor
with whom she had the confrontation.” Referee’s Decision/Order at 2; see also Hr’g
Ex. E-5 (“I don’t deserve to sit for a Loudermill Hearing related to the janitor with
whom I had an altercation . . . .”). Here, viewing the email and all reasonable
inferences therefrom in Claimant’s favor, Claimant’s email could be construed as
reflecting her belief that she had to participate in the hearing with the janitor. See
Morgan, 108 A.3d at 185. But even if the record viewed in Claimant’s favor could
not support such a finding, Petitioner did not explain how it was reversible error.
See Borough, 6 A.3d at 585. In other words, even if the Board was incorrect about
the email, Petitioner did not explain how the error was material. See id. For these
reasons, Petitioner’s challenges to the Board’s findings of fact lack merit.
B. Justifiable Provocation of the Shove
1. Arguments
Petitioner next argues that Claimant’s shove was “willful misconduct”
precluding unemployment compensation. Pet’r’s Br. at 20-22. In Petitioner’s view,
the janitor’s crude remark did not excuse Claimant’s act. Id. at 23-25. In support,
Petitioner contends that it is well settled that offensive or abusive language cannot
“justify an assault and battery.” Id. at 24-25. Petitioner reiterates its argument that
the Board’s conclusion that Claimant was provoked rests upon uncorroborated
testimony. Id. at 27-28.
7
2. Discussion
It is well established that if the employee engaged in willful
misconduct, then the employee is ineligible for unemployment compensation
benefits. 43 P.S. § 802(e); Woodring, 284 A.3d at 964. Whether an employee’s
action constitutes willful misconduct is a question of law. Woodring, 284 A.3d at
964. “Willful misconduct” is either “(1) an act of wanton or willful disregard of the
employer’s interest, (2) a deliberate violation of the employer’s rules, (3) a disregard
for [the] standards of behavior which the employer has a right to expect of an
employee, or (4) negligence indicating an intentional disregard of the employer’s
interest or of the employee’s duties and obligations to the employer.” Id. (cleaned
up).9 If the employer establishes a prima facie case of willful misconduct, then the
burden of proof shifts to the employee to establish good cause for her actions. Id.10
Good cause may be found when the employee’s “actions are justified
9
An employee’s negligent act alone is insufficient to prove willful misconduct. Rusecky
v. Unemployment Comp. Bd. of Rev., 236 A.3d 101, 106 (Pa. Cmwlth. 2020). Rather, the
employee’s negligent act must be “of such a degree or recurrence as to manifest culpability,
wrongful intent, or evil design, or show an intentional and substantial disregard of the employer’s
interest or of the employee’s duties and obligations to the employer[.]” Id. (citation omitted).
Further, because standards of behavior vary between employers, what constitutes willful
misconduct for one employer may not be willful misconduct for a different employer. See Brown
v. Unemployment Comp. Bd. of Rev., 49 A.3d 933, 938 (Pa. Cmwlth. 2012) (stating, “[w]illful
misconduct cannot therefore be considered in a vacuum”).
10
“[T]here is a critical distinction between the employer’s right to terminate employment
and the state’s right to deny benefits.” Blake v. Unemployment Comp. Bd. of Rev., 425 A.2d 43,
45 (Pa. Cmwlth. 1981) (emphases added). Thus, an employee’s action, which does not rise to the
level of willful misconduct for unemployment compensation purposes, may nonetheless justify
that employee’s termination from employment. See id.; Grace v. Unemployment Comp. Bd. of
Rev., 412 A.2d 1128, 1129-30 (Pa. Cmwlth. 1980) (explaining that the employee’s termination
may have been appropriate under the terms of the employer’s leave policy, but that the employee
was entitled to unemployment compensation because the employee’s illness—not an act of willful
misconduct—led to the employee violating the leave policy). It is incontrovertible that the Board
cannot resolve whether the employer was legally justified in terminating an employee.
8
or reasonable under the circumstances,” i.e., the employee was justifiably provoked.
Id. (cleaned up); Eshbach v. Unemployment Comp. Bd. of Rev., 855 A.2d 943, 948
(Pa. Cmwlth. 2004) (explaining that there must be a “willful disregard of the
employer’s [interests] or rules or of the standard of conduct which the employer has
a right to expect” for willful misconduct). “To determine good cause[,] we must
look to the employee’s reason for non-compliance” with the employer’s rule and, if
necessary, “evaluate the reasonableness of the [employer’s] request” of the
employee, which prompted the employee’s non-compliance, “in light of all of the
circumstances.” Bell Socialization Servs., Inc. v. Unemployment Comp. Bd. of Rev.,
74 A.3d 1146, 1147-48 (Pa. Cmwlth. 2013) (Bell).
Generally, courts have found an employee is not justifiably provoked
when subjected to abusive or personally offensive language. Sun Oil Co. v.
Unemployment Comp. Bd. of Rev., 408 A.2d 1169, 1170 (Pa. Cmwlth. 1979) (Sun
Oil); Wisniewski v. Unemployment Comp. Bd. of Rev., 383 A.2d 254, 255 (Pa.
Cmwlth. 1978).11 For example, in Wisniewski, the employee’s coworker “began
mouthing off” and “called [him] a dirty bastard,” which resulted in the employee
pushing the coworker “a couple of feet.” Wisniewski, 383 A.2d at 255. The
Wisniewski Court rejected the employee’s argument that his push was justifiably
provoked. Id.12 Even a coworker’s “offensive and provocative” references to the
11
Highly offensive language itself is a basis for denying unemployment compensation
benefits. See Andrews v. Unemployment Comp. Bd. of Rev., 633 A.2d 1261, 1263 (Pa. Cmwlth.
1993) (holding that the employee’s statements “were so offensive” as to be “willful misconduct”).
12
Indeed, this Court has affirmed the denial of benefits to an employee notwithstanding an
instinctive, automatic physical reaction. For example, this Court categorized an employee’s action
as retaliatory when, in response to being hit on the head by her coworker, the employee
“automatically turned and swung and hit her [coworker] back.” Wolfe v. Unemployment Comp.
Bd. of Rev., 425 A.2d 1218, 1219 (Pa. Cmwlth. 1981) (affirming the denial of benefits); accord
Muncy Valley Hosp. v. Unemployment Comp. Bd. of Rev. (Pa. Cmwlth., No. 730 C.D. 2019, filed
9
employee’s nationality do not justify the employee fighting the coworker. John
Perez v. Unemployment Comp. Bd. of Rev., 427 A.2d 763, 764 (Pa. Cmwlth. 1981)
(John Perez); see also Thorne v. Unemployment Comp. Bd. of Rev., 76 A.2d 485,
487 (Pa. Super. 1950) (holding that the employee’s striking of his supervisor “twice
with his open hand” was not excusable even if the supervisor had insulted the
employee).13
This Court, however, has carved out several exceptions excusing an
employee’s physical contact that was prompted by another person’s verbal remark.
First, when an employee is subjected to offensive language accompanied by
“threatening gestures” or movement, then we have held the employee was justifiably
provoked. For example, in Sun Oil, the employee punched his coworker after the
coworker “kept reaching for” something in his back pocket, threatened to kill the
employee, and insulted the employee with “racial slurs and obscenities.” Sun Oil,
408 A.2d at 1170. The Sun Oil Court held that the employee was justifiably
provoked because he had a “reasonable belief of imminent bodily harm and feared
danger of an assault,” and affirmed the grant of benefits. Id. at 1171 (footnote
omitted).14
In an unpublished opinion, this Court considered analogous facts that
also reflect this exception. See Dep’t of Corr. v. Unemployment Comp. Bd. of Rev.
June 10, 2020) (unreported), slip op. at 14, 2020 WL 3072001, at *6 (stating, “the act of hitting a
person as an immediate, instinctive reaction to physical provocation can still amount to willful
misconduct”).
13
It is undisputed that we may cite Superior Court cases for their persuasive value.
Commonwealth v. Monsanto Co., 269 A.3d 623, 653 n.20 (Pa. Cmwlth. 2021).
14
Similarly, this Court held the employee was justifiably provoked when the employee, as
a result of his coworker’s physical contact, verbally threatened to retaliate if the coworker touched
him again. First Fam. Fed. Sav. & Loan Ass’n v. Unemployment Comp. Bd. of Rev., 449 A.2d
870, 872 (Pa. Cmwlth. 1982) (affirming the grant of benefits to the employee).
10
(Pa. Cmwlth., No. 765 C.D. 2016, filed Apr. 24, 2017) (DOC) (unpublished), 2017
WL 1436379. In that case, the employee had an altercation with a halfway house
resident. Id., slip op. at 2, 2017 WL 1436379, at *1. The parties disputed the words
exchanged, but a video surveillance system recorded the incident, albeit without
audio. Id. The incident ended with the employee yelling at the resident and pushing
the resident to the floor. Id. The employee was fired for violating the rule “that only
the minimum amount of force necessary to defend oneself or others may be used.”
Id. at 3, 2017 WL 1436379, at *2.
In DOC, the employee testified that the resident verbally threatened the
employee and his family and that it was only after the resident moved toward the
employee that the employee pushed the resident down. Id. at 4, 2017 WL 1436379,
at *2. The Department of Corrections (Department) argued that the employee’s use
of force in response to the resident’s threat is “never justified.” Id. The referee
watched the video, found the employee’s testimony credible, and concluded that the
employee reacted with appropriate force. Id. at 4-5, 2017 WL 1436379, at *2-3.
The Department appealed to the Board, which adopted the referee’s findings and
affirmed. Id. at 2, 2017 WL 1436379, at *1.
The Department appealed to this Court, challenging the Board’s
findings regarding the resident’s verbal statements to the employee. Id. at 6-7, 2017
WL 1436379, at *3. In the Department’s view, the Board erred by relying solely on
the employee’s testimony because there were several witnesses who could have
corroborated the employee’s version of events. Id. The DOC Court affirmed in
favor of the employee, reasoning that the employee had personal knowledge and also
apparently accepting the employee’s argument that “his testimony need not be
corroborated to be admissible in a hearing.” Id. at 7-8, 2017 WL 1436379, at *4.
11
A second exception occurs when a supervisor has repeatedly and
“severely harangued” the employee with intimidating, “loud and aggressive . . .
oratory” for 45 minutes about “work attitude.” Kowal v. Unemployment Comp. Bd.
of Rev., 512 A.2d 812, 813-14 (Pa. Cmwlth. 1986). In that situation, the Court
concluded that the employee’s actions were justifiably provoked. Id. at 814(reversing the denial of benefits to the employee). In Kowal, the employee
responded to the supervisor’s behavior by throwing a writing tablet at the supervisor,
i.e., assault, and uttering an expletive. Id. at 813.
Third, if a supervisor ordered the employee’s coworker to deliberately
provoke the employee, then we have excused the employee’s actions. Jose Perez v.
Unemployment Comp. Bd. of Rev., 736 A.2d 737, 740 (Pa. Cmwlth. 1999) (Jose
Perez). In Jose Perez, because the supervisor wanted to fire the employee, he
instructed the coworker to provoke the employee into losing his temper. Id. at 739.
While the employee was welding inside a steel bin, the coworker began hitting the
bin with a hammer, which caused loud noises. Id. at 738. As a result, the employee
confronted the coworker, “lightly pushed” the coworker, and was fired. Id. at 740.
The Jose Perez Court reversed the denial of benefits, reasoning that the employee
was justifiably provoked by the supervisor’s intentional provocation. Id. at 742(stating, “[w]hile antagonistic physical contact in the workplace, including the minor
contact which occurred here, should not be condoned, neither should the conduct of
a supervisor who intentionally provokes an employee”).15
15
In another case, this Court held that an employee’s offensive remark was not willful
misconduct when the employee’s remark was prompted by her supervisor grabbing the employee’s
arm “in an apparent attempt to restrain her from walking to the lunchroom for her break.” Horace
W. Longacre, Inc. v. Unemployment Comp. Bd. of Rev., 316 A.2d 110, 112 (Pa. Cmwlth. 1974)
(Longacre). The Longacre Court categorized the supervisor’s action as an “improper and
unpardonable indiscretion by an executive” and that the employee was justified in voicing “her
impulsive expletive.” Id.12
In sum, our Courts have held that an employee’s actions were
justifiably provoked when an employee (1) reasonably believes he is threatened with
physical harm; (2) is directly targeted by severe, intimidating, loud, and aggressive
speech; or (3) is subjected to intentional provocation in order to fabricate
justification to fire the employee. See Sun Oil, 408 A.2d at 1171; Kowal, 512 A.2d
at 813-14; Jose Perez, 736 A.2d at 742.
Instantly, and as we held above, competent evidence of record supports
the Board’s findings of fact regarding the janitor’s crude statement. The parties also
do not dispute that Claimant violated a workplace rule by shoving the janitor. See
Pet’r’s Br. at 29-31; Claimant’s Br. at 12 & n.9. Rather, the parties’ only dispute is
whether, in light of all of the circumstances, Claimant’s shove was justifiably
provoked by the janitor’s remark. See Woodring, 284 A.3d at 964; Bell, 74 A.3d at
1147-48.
Unlike the cases discussed above, the record does not indicate that the
janitor threatened Claimant or her family with physical harm, subjected Claimant to
intimidating, aggressive speech for a lengthy period of time, or was ordered to
intentionally provoke Claimant. See, e.g., Sun Oil, 408 A.2d at 1171; Kowal, 512
A.2d at 813-14; Jose Perez, 736 A.2d at 742. Even if we accept that the janitor’s
crude statement was highly offensive or that Claimant’s shove was “automatic,”
Claimant cannot establish a justifiable provocation. See, e.g., John Perez, 427 A.2d
at 764; Wolfe, 425 A.2d at 1219; Thorne, 76 A.2d at 487 (holding that an employee’s
slap of the victim was not justifiably provoked even if the employee was insulted).
Accordingly, the Board erred in holding that Claimant was justifiably provoked in
shoving the janitor in response to his crude statement. We emphasize that we do not
approve of the janitor’s crude statement, but our courts have consistently held that
13
even highly offensive remarks cannot justify a physical act of violence, even if that
act was instinctive or automatic. See John Perez, 427 A.2d at 764; Wolfe, 425 A.2d
at 1219.
IV. CONCLUSION
For these reasons, because the Board erred as a matter of law by holding
that Claimant was justifiably provoked, we respectfully reverse the Board. See
Woodring, 284 A.3d at 966. Because of our holding, we need not address
Petitioner’s remaining issue. Metalico Pittsburgh Inc. v. Newman, 160 A.3d 205,
214 n.15 (Pa. Super. 2017).16
LORI A. DUMAS, Judge
Judge Wallace did not participate in the decision in this case.
16
We note, however, that Petitioner argued that Claimant’s email violated 22 Pa. Code §§
235.2(b) and 235.3(b), but Petitioner did not charge Claimant with violating those sections. See
Pet’r’s Br. at 38; Hr’g Ex. E-7 (notice of charges); see also Scott v. Unemployment Comp. Bd. of
Rev., 105 A.3d 839, 845 (Pa. Cmwlth. 2014) (stating, “[a]n employer is bound by its stated reasons
for an employee’s dismissal and cannot raise new reasons at the hearing”).
14
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Reading School District, :
Petitioner :
:
v. : No. 1644 C.D. 2019
:
Unemployment Compensation :
Board of Review, :
Respondent :
ORDER
AND NOW, this 20th day of January, 2023, we REVERSE the October
30, 2019 order of the Unemployment Compensation Board of Review.
LORI A. DUMAS, Judge