Simon Mustokoff, Philadelphia, for appellant.
Roland M. Morgan, Associate Counsel, Harrisburg, William L. Hammond, Sp. Deputy Atty. Gen., Charles J. Margiotti, Atty. Gen. for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 168 Pa. Super. Page 292]
Appellant was employed by the Consolidated Cigar Company of Philadelphia as a carpenter for approximately four months ending December 18, 1948, when he was discharged for willful misconduct.
On July 28, 1949, he registered for work and filed a waiting week claim for the week ending August 3, 1949, and a continued claim for the week ending August 10, 1949. The Unemployment Compensation Bureau on August 15, 1949, disallowed the claim on the ground that claimant had provoked his discharge. On appeal the decision of the Bureau was affirmed by the referee and on further appeal the decision of the referee was affirmed by the Board of Review.
Section 402(e) of the Unemployment Compensation Law, as amended May 29, 1945, P.L.1145, 43 P.S. § 802, provides in part that: 'An employe shall be ineligible for compensation for any week * * * (e) In which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work; * * *.' There is a paucity of decision, not only in this Commonwealth but generally, as to what constitutes 'willful misconduct,' but the authorities seem to be in substantial agreement that 'The standard to be applied is that of the employment contract, express or implied, which fixes the worker's duties in connection
[ 168 Pa. Super. Page 293]
with his work. Since conduct can be wrong only when it violates a duty to act otherwise, benefit decisions have held that an essential element of misconduct connected with the work is a breach of duty to the employer.' 55 Yale L.J. 160, 163.
Applying that standard to appellant's claim, it appears from his own testimony that: 'When I was hired, they asked if I could make cabinets and do regular factory maintenance work, which comes under the carpentry line. I said yes.' (Emphasis added.) But when his employer 'turned * * * over to' him the job of moving a partition designed 'to hold the humidity of the cigars' by lining 'on both sides with what they call 1 A 6 fencing lumber,' he said that he would need the help of other carpenters. When laborers instead of carpenters were detailed to help him with the work he complained to a Mr. Lock, the superintendent who had hired him. He testified: 'He furnished help, but not the proper kind of help. He furnished ordinary laborers.' Because he did not get the type of help he thought he should have, claimant was dissatisfied and repeatedly complained on that score. He further testified: 'There were continuous arguments * * * from the first day I came there to when I was discharged.' He added: 'I forced my own discharge due to the fact that Mr. Lock was unfair to humanity.' There is nothing in the evidence to support the latter part of that statement, unless it be that claimant thought Lock was imposing on him. He testified: 'When he hired me he said it was maintenance carpenter work. When he saw I was good he imposed on me,' the imposition being that he was required to do more than his share of the work. He admitted, however, that 'The work wasn't too hard' and that when he and the men working under him were required to work longer hours than the usual work week 'We got overtime for it.'
[ 168 Pa. Super. Page 294]
The Board of Review affirmed the decision of the referee but vacated his findings of fact and substituted therefor its own findings, to the second and third of which exception has ...