John M. Sopko, in pro. per.
William L. Hammond, Sp. Deputy Atty. Gen., Robert E. Woodside, Atty. Gen., Roland M. Morgan, Associate Counsel, Harrisburg, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 168 Pa. Super. Page 626]
This is an appeal by claimant from the decision of the Unemployment Compensation Board of Review. Claimant had been employed for approximately forty years by J. G. Curtis Leather Company, Ludlow, Pennsylvania. During most of that period he worked as a machine operator. In May, 1950, however, the department in which he worked was temporarily closed. In order to make work available for claimant, as well as for several other employes, the company, during such period, assigned them to temporary work around the plant such as cutting grass and weeds and cleaning up. For this work claimant received his regular pay. Claimant's work in such capacity was unsatisfactory, and the Board found that 'he failed to perform his assigned duties and spent much of his working time wandering over the premises.' Upon claimant's failure to correct this situation, despite two warnings by the foreman, claimant was sent home until work became available in his own department. His last day of work was June 9, 1950. For the period from July 2 to July 16, 1950, he received vacation pay. The findings of fact are not in dispute, and they are supported by the evidence.
Claimant registered for work and filed an application for benefits effective June 11, 1950. Thereafter he filed a waiting week claim for the week ending June 17 and four continued claims for the weeks ending
[ 168 Pa. Super. Page 627]
June 24 and July 1, 8, and 15, 1950. The bureau disallowed his claims, and upon appeal the referee affirmed the bureau's decision upon the ground that claimant's separation from work was due to 'willful misconduct in connection with his work' within the meaning of section 402(e) of the Unemployment Compensation Law, 43 P.S. § 802(e), which provides: '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; * * *.' The Board affirmed the referee's decision upon the same ground, with the modification that claimant was ineligible under section 401, 43 P.S. § 801, and section 4(u), 43 P.S. § 753, of the Law during the two weeks when he was receiving vacation pay. See Fazio Unemployment Compensation Case, 164 Pa. Super. 9, 63 A.2d 489.
In his appeal to this Court, claimant contends that the testimony given at the referee's hearing on September 5, 1950, indicated that the temporary work to which he had been assigned, and from which he had been dismissed, had been completed at that date, and that his department had not then resumed work. He argues therefrom that he is entitled to compensation benefits from that date. Such claim has no relevancy to the present appeal. We are here concerned only with the weeks for which claims were filed and determination made by the bureau, and all of those weeks were prior to July 15, 1950, when work was available.
As to the claims for the weeks in issue, we find no error in the Board's decision. Claimant was unquestionably disqualified from receiving benefits for the weeks during which he received vacation pay under the provisions of section 4(u) of the Law. In fact in his petition for appeal from the decision of the bureau,
[ 168 Pa. Super. Page 628]
he states that he was not claiming ...