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LOUIS FRUMENTO v. UNEMPLOYMENT COMPENSATION BOARD REVIEW (01/29/76)

SUPREME COURT OF PENNSYLVANIA


decided: January 29, 1976.

LOUIS FRUMENTO, APPELLANT,
v.
UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, APPELLEE, AND DOMINICK STAFFIERI, INC., INTERVENING APPELLEE

COUNSEL

Marvin F. Galfand, Philadelphia, for appellant.

John C. Wright, Jr., Peter Broida, Philadelphia, for appellee, Dominick Staffieri, Inc.

Sydney Reuben, Harrisburg, for appellee, Unemployment Comp. Bd. of Rev.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ.

Author: Nix

[ 466 Pa. Page 82]

OPINION OF THE COURT

This appeal arises under the Unemployment Compensation Law, Act of December 5, 1936, P.L. [1937] 2897,

[ 466 Pa. Page 83]

    as amended, 43 P.S. § 751 et seq. The specific question is whether appellant-employee was properly excluded from benefits under this Act because of a termination of employment as a result of "willful misconduct" in accordance with section 402(e), 43 P.S. § 802(e).

Appellant's application for unemployment compensation benefits was denied by the Bureau of Employment Security premised upon a determination that his discharge was as a result of willful misconduct. This determination was reversed by a referee who was in turn reversed by the Unemployment Compensation Board. The Commonwealth Court affirmed the action of the Board and this Court granted allocatur.

There is no serious dispute as to the events which resulted in the discharge. Appellant Louis Frumento had been employed by Dominick Staffieri, Inc. as a compressor truck driver for approximately three years. In January of 1972, Frumento advised his employer that he had been elected judge of election and that it would be necessary for him to miss work on primary and general election days. The employer then told Frumento that permission for missing work on these two days would depend on the volume of work at the time. On April 24, 1972, Frumento advised his employer that he would miss work the next day, which was primary election day. His employer refused to give Frumento the day off and warned him that he would be discharged if he did not come to work. Frumento did not report for work and was discharged.

The dispute arises because the statute does not define the term "willful misconduct." The Superior Court has had an occasion to define this concept as:

"'Willful misconduct' . . . has been held to comprehend an act of wanton or willful disregard of the employer's interest, a deliberate violation of the employer's rules, a disregard of standards of behavior which the employer has a right to expect of an employee,

[ 466 Pa. Page 84]

    or negligence indicating an intentional disregard of the employer's interest or of the employe's duties and obligations to the employer." Moyer Unemployment Compensation Case, 177 Pa. Super. 72, 74, 110 A.2d 753, 754 (1955).

See also Davis v. Unemployment Compensation Board of Review, 187 Pa. Super. 116, 117, 144 A.2d 452, 454 (1958).

While all parties to this action expressed their agreement with the language of the Superior Court quoted above, each side attempts to construe the meaning in accordance with their understanding of the philosophy of the Act. For instance, intervening-appellee, Staffieri, argues "it matters not to the employer whether the employee has a good reason." The employer would urge that we extend the term "willful misconduct" to embrace every deliberate absence contrary to the expressed instructions of an employer which has not been "truly involuntary". In citing an example of a situation that could properly be considered as "truly involuntary", the employer suggests one where an employee's absence is as a result of compliance with a legal subpoena. Here appellant asserted that his absence was compelled by the provision of the Election Code*fn1 which makes the willful failure of a judge of election to fulfill his responsibilities a misdemeanor. The employer adopts the argument of the Commonwealth Court rejecting this contention because

[ 466 Pa. Page 85]

Frumento voluntarily assumed this responsibility.*fn2 We reject the reasoning of the employer and the Commonwealth Court as being too restrictive to carry out the clear legislative intention of this section of the Unemployment Compensation Act.

Paramount in our analysis is the realization that this act was intended to be remedial and, thus, should be liberally construed to achieve its express purposes.

"In attempting to arrive at a definition for this term, it is helpful to be mindful of the guiding principle announced by this Court in Wedner v. Unemployment Compensation Board of Review, 449 Pa. 460, 467, 296 A.2d 792, 796 (1972):

"'Finally, it is to be remembered that the Unemployment Compensation Law is a remedial statute, and, excepting the sections imposing taxes, its provisions must be liberally and broadly construed so that its objectives [insuring that employees who become unemployed through no fault of their own are provided with some semblance of economic security] may be completely achieved.' Blum Unemployment Compensation Case, 163 Pa. Super. 271, 278, 60 A.2d 568, 571 (1948)."

Lattanzio v. Unemployment Compensation Board of Review, 461 Pa. 392, 336 A.2d 595, 598 (1975). See also

[ 466 Pa. Page 86]

    by the Superior Court in order to fall within the definition of "wilful misconduct" the actions must represent "a disregard of standards of behavior which the employer has a right to expect of an employe[e]." Moyer v. Unemployment Compensation Board of Review, supra. Thus, not only must we look to the employee's reason for non-compliance we must also evaluate the reasonableness of the request in light of all of the circumstances. To accommodate this end the Superior Court developed a concept of good cause. Crib Diaper Service v. Unemployment Compensation Board of Review, 174 Pa. Super. 71, 98 A.2d 470 (1953), see also Krawczyk Unemployment Compensation Board of Review, 175 Pa. Super. 361, 104 A.2d 171 (1954). The rationale upon which this concept of good cause was developed was that where the action of the employee is justifiable or reasonable under the circumstances it can not be considered wilful misconduct since it can not properly be charged as a wilful disregard of the employer's intents or rules or the standard of conduct the employer has a right to expect. Crib Diaper Service v. Unemployment Compensation Board of Review, supra. We find this reasoning persuasive.

Applying this concept of good cause to the instant facts, we are satisfied that the Commonwealth Court and Board erred in denying benefits to this appellant. If the nature of the employee's undertaking (judge of election) was inimical to the employer's interest, he was provided ample opportunity to request that Frumento relinquish this responsibility. Having waited until the day before the primary election, when the question was again raised by the employee, to issue the directive in question appears to have been an unreasonable approach. Further, the employer first conditioned his approval of the absence upon whether the work load would allow the loss of the employee's services for the day. The refusal, however, was predicated upon the absence of other employees

[ 466 Pa. Page 88]

    and not an increase in the volume of the normal work load.*fn5

We have carefully reviewed the authorities offered by intervening appellee and find them inapplicable. In Burke Unemployment Compensation Board of Review, 199 Pa. Super. 565, 186 A.2d 425, although a denial of benefits was upheld for claimant's refusal to work during the Christmas holidays, the court took great care to point out that the employer had fairly attempted to equalize days off between his employees and the employee failed to offer any explanation for the decision not to appear on the days assigned. See Davis v. Unemployment Compensation Board of Review, 187 Pa. Super. 116, 144 A.2d 452 (1958). In Morgan v. Unemployment Compensation Board of Review, 176 Pa. Super. 297, 106 A.2d 618 (1954) the conduct of claimant was an arbitrary and flagrant disregard of the employer's interest, and clearly inapposite to the instant factual situation. However, the court in that decision recognized that "a single instance of misconduct is usually not such as to bring an employe[e] within the purview of § 402(e)." Lastly, the employer offers Butchko v. Unemployment Compensation Board of Review, 168 Pa. Super. 618, 82 A.2d 282 (1951) where the appeal was dismissed because claimant failed to file a brief or appear for argument.

The order of the Commonwealth Court is reversed and the matter is remanded to the Unemployment Compensation Board of Review for further proceedings consistent herewith.


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