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LUX UNEMPLOYMENT COMPENSATION CASE. (11/16/55)

November 16, 1955

LUX UNEMPLOYMENT COMPENSATION CASE.


Appeal, No. 235, Oct. T., 1955, by claimant, from decision of Unemployment Compensation Board of Review, dated April 11, 1955, No. B-39164, in re claim of Peter P. LUX. Decision affirmed.

COUNSEL

Sheldon Tabb, with him Edward Davis, for appellant.

Sydney Reuben, Special Deputy Attorney General, with him Herbert B. Cohen, Attorney General, for appellee.

Before Rhodes, P.j., Hirt, Ross, Wright, Woodside, and Ervin, JJ. (gunther, J., absent).

Author: Ross

[ 180 Pa. Super. Page 91]

OPINION BY ROSS, J.

In this unemployment compensation case, the claimant, Peter P. LUX, has appealed from a decision of the Board of Review refusing benefits on the ground that he was guilty of willful misconduct resulting in his discharge and therefore barred from benefits under Section 402 (e) of the Act.

The claimant was employed by the Karl Seiler Meat packing concern in Philadelphia as a driver salesman. He operated his employer's truck and made sales therefrom to retail stores on his route. He was discharged on September 10, 1954 and thereafter obtained employment

[ 180 Pa. Super. Page 92]

    as a salesman for another firm for a short time when his employment was again terminated. Since his earnings at this latter position did not equal eight times his weekly benefit rate, the allegation of discharge for willful misconduct from the Seiler employment became the decisive issue in his claim for benefits. Section 401(f) of the Act, 43 P.S.Sec. 801(f).

The Board made inter alia, the following findings in this regard: "5. Claimant's tonnage (sales) fell approximately 20% during the last several months of his employment and he was 300 to 700 pounds below normal. On several occasions he was requested, but refused, to carry certain items. On his last day of work he was instructed to put smoked sausage on his truck and attempt to sell same but claimant refused to do so feeling he had no demand for this product but also admitted he had little experience in attempting to sell it. 6. Claimant was discharged for his failure to carry certain items as requested causing his sales to fall below normal."

In the record of the Board hearing there is this testimony by Mr. Taylor, claimant's superior at the Seiler Co.: "Q. Did you ever request Mr. Lux to take certain merchandise on the truck? A. Yes, on several occasions. Q. He refused? A. Yes." Taylor also testified that on the day Lux was fired and on at least four or five prior occasions within the last six months of his employment Lux had refused to carry certain merchandise. Claimant's own testimony admits his refusal to take out goods at Taylor's request. When asked: "Q. You heard Mr. Taylor testify. He says on four or five occasions you refused to take out certain items. Were there four or five occasions ...


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